The Fourteenth Amendment Can’t Be Revoked by Executive Order

A former Trump aide twists the words of the Constitution to advocate depriving American-born children of their citizenship

A child is silhouetted against a U.S. flag at a rally in support of immigration rights in Irving, Texas October 13, 2007. Opposing sides came out to express their views about a controversial program used by the Irving Police Department which hands undocumented workers over to federal officials for deportation proceedings. REUTERS/Jessica Rinaldi (UNITED STATES) – GM1DWJDYZVAA

Three weeks after he was elected president, Donald Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!”

Trump thinks about citizenship—and about taking it away—a lot. His entry into Republican politics was an attack on President Barack Obama’s status as a “natural-born citizen.” He is also no fan of the citizenship clause of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

In August 2015, Trump told a press conference that American-born children should not be citizens if their parents are undocumented. “A woman is getting ready to have a baby, she crosses the border for one day, has the baby, all of a sudden for the next 80 years, hopefully longer, but for the next 80 years we have to take care of the people. No, no, no, I don’t think so … There are great legal scholars, the top, that say that’s absolutely wrong.”

Trump misapprehends, to say the least, the state of scholarship. Peter H. Schuck of Yale Law School and Rogers M. Smith, a political scientist at the University of Pennsylvania, have for years been beating the drum for the idea that the Fourteenth Amendment means something radically different from its historical meaning, permitting Congress to strip these children of their citizenship and potentially render them stateless. Though Schuck and Smith are respected, few other serious constitutional scholars have joined their parade.

The majority view is that the words mean exactly what they say—a reading the U.S. Supreme Court agreed with in the 1898 case of United States v. Wong Kim Arkin which it rejected a government attempt to deny citizenship to the child of Chinese immigrants. In this view, Schuck and Smith misread the historical materials.

But that misreading is a minor matter compared to the latest salvo from the fringe world of Trumpism. Writing in The Washington Postthe former Trump White House aide Michael Anton has now proposed something I have never heard any sane human being suggest before: “An executive order could specify to federal agencies that the children of noncitizens are not citizens.”

Michael Anton is not one of the “great legal scholars, the top” whose authority Trump has claimed. After Trump’s election, he was the spokesperson for the National Security Council. His oeuvre includes a 2006 book, The Suit: A Machiavellian Approach to Men’s Stylewarning that “‘business casual’ has proved itself a one-way ticket to a lifetime in the corporate dungeon.” He gained notoriety during the presidential election by comparing the Hillary Clinton campaign to an al-Qaeda hijacking. Voting for Trump, he argued, was a meritorious act of destruction, the equivalent of forcing the Flight 93 hijackers to crash into the ground.

Not surprisingly, then, Anton’s proposal draws heavily on other work—specifically that of Edward Erler, a political scientist at California State University—San Bernardino.

I have been writing about the citizenship clause of the Fourteenth Amendment, and its meaning for the children of the undocumented, for more than a decade. In a 2006 book, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America, I traced the drafting of the Amendment and the process by which the Senate added citizenship language in May 1866. In a subsequent scholarly article, “The Citizenship Clause: A ‘Legislative History,’” I reviewed in exhaustive (you’ve been warned) detail the debates over this precise clause. I have written about the birthright citizenship issue for The Atlantic herehere, and here.

And, for my sins, I once took part in an online debate with Erler, during which we canvassed the precise evidence Anton claims to rely onIn that exchange, I wrote, “I have no personal quarrel with Erler. But I am constrained to note that he has edited a quotation to suggest a meaning contradicted by the unedited text, he has misidentified a key player in the debate and misstated his role in it, he has cited remarks about one measure and stated that they were made about another, and he has directly misstated the meaning of adverse case authority. His novel interpretation of the clause thus rests on flawed evidence.”




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