President Donald Trump is tearing through constitutional norms again with his suggestion that he can remove the right to citizenship for children born in the United States of undocumented immigrants.
Even if this idea goes nowhere and it is likely to go nowhere – the Constitution’s 14th Amendment 150 years ago conferred automatic citizenship to anyone born in the US, and the Supreme Court has upheld that birthright - the latest assertion reinforces a singular Trump message: The law is what he says it is.
Trump has declared people innocent or guilty, based on his personal views. He has derided US judges for decisions with which he disagrees. He has swatted away fundamental notions of due process by calling for the death penalty of people before they were even formally tried in court.
Now he appears to want to rewrite the Constitution with the stroke of his pen.
His targets have often been racial minorities and immigrants. Last May, the President suggested that immigrants at the border could be summarily deported without the usual hearings to determine if they deserved asylum or were US citizens wrongly apprehended.
He said in an Axios interview made public on Tuesday that he intends to sign an executive order that would remove the right to citizenship of children born in the US to non-citizens and undocumented immigrants.
That flatly conflicts with the 14th Amendment, ratified in 1868 after the Civil War, that granted citizenship to “all persons born or naturalized in the United States.”
The White House has not released language of the proposed order or outlined its legal justification for such an order.
Even if most of what Trump asserts regarding the law is wrong, it gets attention because it comes from him, the President of the United States, on his unparalleled perch.
In comments that have been picked up by major news organizations, Axios reported that Trump had obtained legal advice in the White House for ending birthright citizenship.
Such a move, if it were carried out in an executive order, would immediately be challenged in the courts. It is highly debatable whether even Congress could pass a law altering the principle that all children born in the United States are citizens. It would take a constitutional amendment to reverse the 14th Amendment’s provision that birth in American automatically means US citizenship.
Yet as with many other instances, constitutional values and the normal judicial processes are being treated as speedbumps.
A year ago this week, he declared that a 29-year-old Uzbekistan native, Sayfullo Habibullaevic Saipov, charged with killing eight pedestrians and bikers in New York City, deserved the death penalty. Trump’s assertion on Twitter immediately spurred some law professors and legal analysts to worry that the President’s comments could prejudice the government’s legal case.
Federal prosecutors announced last month that they would seek the death penalty, over arguments from the defendant’s lawyers that Trump’s tweets last year interfered with the ability of Justice Department officials to make an impartial decision on how to handle the case.
Earlier this month at a White House ceremony for new Supreme Court Justice Brett Kavanaugh, Trump said Kavanaugh had been “proven innocent” of sexual assault allegations. Kavanaugh had not, in fact, been subject to any trial or fact-finding proceeding. The judicial veteran had categorically denied the claims from a woman who said the assault occurred when they were both teenagers in suburban Maryland, and he had been confirmed for the high court after a Senate hearing that did not involve any traditional trial procedures.
Trump has repeatedly denounced the men and women of the US judiciary when he disagrees with their decisions.
As a candidate in 2016, Trump attacked Judge Gonzalo Curiel, hearing a Trump University fraud case, based on the US-born Curiel’s “Mexican heritage.”
Then, newly elected Trump derided judges who ruled against his Muslim travel ban, calling one a “so-called judge.”
Trump’s first presidential pardon was for former Arizona county Sheriff Joe Arpaio, who a US district court judge had held in criminal contempt for disobeying an order to stop targeting Latinos for traffic stops and detention.
On Tuesday, critics across the political spectrum seized on Trump’s comments about birthright as damaging to the national fabric and constitutional values.
“It is hard to imagine an executive order that would be more ill-timed or misguided given recent events across the country that have led to an increase in hate crimes and marginalization of minority communities based on race, national origin and religion,” Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law, said in a statement.
Approaching Trump’s comments from the conservative viewpoint but sounding a similar chord, Linda Chavez, a former Reagan administration official and now director of Becoming American Initiative, said in a statement that Trump’s effort to strip newborns of immigrants of their citizenship “exposes the depths of his contempt for our Constitution.”
She also commented on its timing, arguing, “The President’s motives are purely political – hoping to stir up his anti-immigrant base in advance of next week’s midterm election.”