Legal expert: Ending birthright citizenship is possible, but not likely to succeed

Published: Oct. 30, 2018 at 5:25 PM EDT
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(10/30/2018) - President Trump says he plans to use his executive powers to end birthright citizenship for babies born in the U.S. to non-citizens.

His announcement comes just a week before the midterm elections, in which immigration is a key issue for the Republican Party.

A constitutional law expert doubts an executive order -- at least what Trump described -- would hold up in court.

"If he does do an executive order based on the interview that he gave, it's going to need a couple revisions," said legal expert and attorney Benjamin Stoltman, the judicial clerk to the Genesee County Probate Court chief judge.

He said the 14th Amendment would be the biggest obstacle to a policy change like Trump discussed. It reads in part:

"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 addition to that opening of the 14th Amendment's first article, it goes on to offer equal protection under the law for everyone within U.S. borders.

"If he were to redefine how the U.S. exercises jurisdiction over people within its borders and were to say anyone that enters illegally is not subject to U.S. jurisdiction, it would apply to them," Stoltman said.

He said there is no way for a president to uphold an executive order that directly conflicts with the Constitution. Stoltman said presidents can provide clarification or definition, but they can't rewrite the document.

For Trump's executive order to stand legally, Stoltman said the executive branch essentially would have to clarify the definition of "jurisdiction" to work in his favor, which is possible, but nothing more than that.

"It was a very sort of off the cuff thing. Factually inaccurate," Stoltman said. "He said there's no other country where this happens. Last check, I think there's 30 other countries, including Canada to the north and Mexico to the south."

As a longshot possibility, the 14th Amendment could be changed. But that requires approval from two-thirds of both the U.S. House and Senate, along with 38 state legislatures.