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WASHINGTON—President Trump is planning an executive order to terminate the automatic right to citizenship for children born in the U.S. to noncitizens, a move that legal experts said would be unconstitutional.
“It’s in the process. It’ll happen, with an executive order,” Mr. Trump said in an interview with Axios made public this morning, further escalating his tough stance on immigration ahead of the midterm election.
Constitutional scholars immediately dismissed the idea, saying a president has no legal standing to unilaterally end birthright citizenship, while critics called it an opportunistic election-season stunt.
“He can’t do that,” said Laura K. Donohue, a senior scholar at the Georgetown Center for the Constitution. “It’s basically saying the president is above the Constitution.”
Birthright citizenship is protected by the 14th Amendment, which states, “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.”
With the midterm election one week away—and the president’s agenda threatened by the prospect of a Democratic takeover in the House—Mr. Trump has used immigration as an issue to energize the Republican base and has focused on a caravan of migrants moving toward the U.S. from Central America, asserting without evidence that “criminals and unknown Middle Easterners are mixed in.”
The U.S. military on Monday said it is sending 5,200 troops to the border in anticipation of the caravan, which is still hundreds of miles away and traveling by foot. Many of the migrants say they are fleeing gang violence.
Mr. Trump told Axios he had discussed ending birthright citizenship with legal counsel and insisted he had the authority to act. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said.
The White House didn’t provide further details of Mr. Trump’s plans. “We will let you know when we have an announcement,” White House Press Secretary Sarah Sanders said. The Department of Justice referred questions to the White House.
Critics of birthright citizenship in the U.S. have long decried the amendment, but changing the Constitution is exceedingly difficult, requiring approval from two-thirds of both the House of Representatives and the Senate and ratification by three-fourths of the states. Changes can also be made through a constitutional convention but that requires a call from two-thirds of state legislatures.
Republican lawmakers have periodically introduced legislation to change the historic understanding of the 14th Amendment, without success. Rep. Steve King (R., Iowa) has repeatedly done so. Sen. Lindsey Graham (R., S.C.) said Tuesday morning that he would push for another legislative effort.
“I plan to introduce legislation along the same lines as the proposed executive order,” Mr. Graham wrote on Twitter while praising Mr. Trump. “Finally, a president willing to take on this absurd policy of birthright citizenship.”
Passing such legislation would also be a long shot and would face a steep battle in the courts, legal experts say.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said Mr. Trump “cannot erase the Constitution with an executive order.”
“This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms,” Mr. Jadwat said.
Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, called Mr. Trump’s plans ill-timed and misguided. “Aside from being unconstitutional, such an executive order would exacerbate racial tensions, exploit fears and drive further polarization across the country at a moment that calls for unity and inclusion,” Ms. Clarke said.
In 2014, about 275,000 babies were born to unauthorized-immigrant parents, about 7% of the 4 million births that year, according to a Pew Research Center report on government data.
Mr. Trump incorrectly told Axios that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.” Dozens of countries in the Americas, including the U.S., Canada, Mexico, Brazil and Argentina, have birthright citizenship, according to the CIA World Factbook. Most countries in Europe, Asia and Africa don’t, and require that at least one parent be a citizen for their child to get automatic citizenship.
Americans support birthright citizenship by about a 2-to-1 ratio, a Wall Street Journal/NBC News poll from September 2017 found. In the survey, 65% said birthright citizenship should continue, while 30% agreed with the statement that the practice should end “so children of illegal immigrants are not automatically granted citizenship.”
The survey found a substantially higher level of support for birthright citizenship than it found in 2010, when 49% said the practice should continue and 46% backed ending it.
In the 2017 survey, more Republicans called for ending birthright citizenship than continuing it, by 52% to 42%. Independents and Democrats supported birthright citizenship by large margins.
Among Hispanics in the 2017 survey, 80% backed birthright citizenship, while 18% said the practice should be ended.
—Aaron Zitner contributed to this article.
Write to Alex Leary at [email protected]
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