- The Washington Times - Tuesday, October 30, 2018

President Trump plans to use an executive order to circumvent a gridlocked Congress and end birthright citizenship, turning to the same “unconstitutional” method for which he repeatedly criticized President Barack Obama during the 2016 presidential campaign.

Mr. Trump detailed his plans in an interview released Tuesday by Axios, telling the online political outlet that he had run the idea by White House lawyers and they said he has the power to do it.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Mr. Trump said.

The idea landed with a thud.

While some ardent supporters cheered him for taking the initiative, a much larger swath of legal scholars, immigrant-rights activists and Democrats and Republicans on Capitol Hill said the plan was hypocritical, constitutionally suspect and politically misguided.

House Speaker Paul D. Ryan, Wisconsin Republican, said that by threatening executive action Mr. Trump was acting like Mr. Obama, who famously bragged he had “a pen and a phone” he would use to circumvent Congress and impose his own immigration policies on the country.

SEE ALSO: Paul Ryan shoots down Trump’s birthright citizenship plans

“You cannot end birthright citizenship with an executive order. We didn’t like it when Obama tried to change immigration laws with executive actions,” Mr. Ryan told WVLK radio in Kentucky.

Sen. Charles E. Grassley, the Iowa Republican who just won confirmation of Mr. Trump’s latest Supreme Court nominee, broke with the president as well, saying that while he would review the eventual order, “this is an issue that Congress should take the lead to carefully consider and debate.”

Birthright citizenship — granting automatic citizenship to nearly everyone born on U.S. soil, regardless of whether their parents were admitted legally — has been policy for more than a century.

Numerous bills have been written in Congress to try to alter the policy, but they’ve failed to pass.

Mr. Trump is the first president to suggest using an executive order.

The White House declined to comment on the record on Mr. Trump’s plans. A spokesman also declined to defend the president’s turn to executive action after he regularly berated Mr. Obama for doing the same thing.

During the 2016 campaign Mr. Trump called Mr. Obama’s Deferred Action for Childhood Arrivals, or DACA, policy for illegal immigrant “Dreamers” and a similar plan for illegal immigrant parents “illegal executive amnesties,” and said Mr. Obama “defied federal law and the Constitution” in issuing them.

Now in office, Mr. Trump himself has found an affinity for flexing executive powers, ranging from his attempt to rein in sanctuary cities to his travel ban. He also is reportedly considering a directive to stop migrants from claiming asylum if they jump the U.S.-Mexico border.

“Both President Obama and President Trump are seriously pushing the envelope of what has traditionally been seen as executive powers on immigration,” said Theresa Cardinal Brown, director of immigration policy at the Bipartisan Policy Center.

She said both presidents were acting out of the same frustration with Congress, which was unable to approve the legalization immigration deal Mr. Obama pushed for in 2013, and defeated Mr. Trump’s security-focused plan earlier this year.

With Congress on the sidelines, presidents from both parties have claimed an opening to act. And they’ve been sued for it.

“We have everybody suing everybody about immigration right now,” Ms. Brown said.

Indeed, even those backing Mr. Trump’s birthright citizenship plan say they expect he’ll be sued — just as he was over the travel ban, sanctuary cities, his attempt to roll back DACA, his move to add a citizenship question to the 2020 census, his zero-tolerance border policy, his border wall plans and earlier attempts to curtail asylum claims.

Mr. Trump did win support Tuesday from Sen. Lindsey Graham, who had previously announced his own plans to write legislation canceling birthright citizenship.

“Finally, a president willing to take on this absurd policy of birthright citizenship,” the South Carolina Republican said.

Democrats, though, saw nefarious motives in the president’s proposal.

“Even as we cope with bombers and mass murderers triggered by lies about refugees and immigrants, Trump keeps going back to his comfort zone, the foundation of his presidency: Hating on brown people,” said Rep. Luis V. Gutierrez, Illinois Democrat, adding that the president’s move seemed timed to gin up his political base ahead of next week’s elections.

In 2014, about 275,000 babies were born to illegal-immigrant mothers, or about 7 percent of the 4 million births in the U.S. that year, according to Pew Research Center analysis of government data.

But it’s not clear how many of those were to women who came to the U.S. with the specific goal of making their children American citizens.

The president told Axios it was “ridiculous” to be the only country with birthright citizenship, and insisted that “it has to end.”

There are at least 30 nations in the Western Hemisphere with forms of birthright citizenship, including both Canada and Mexico, according to a list compiled by the Center for Immigration Studies, which announced its support for Mr. Trump’s move Tuesday.

One problem with using executive actions is that the next president can easily revoke them — as Mr. Trump has bragged about doing for a number of Mr. Obama’s moves.

Legally speaking, Mr. Trump said he’d run his ideas by White House lawyers who said he was on solid ground.

Getting the policy through the Justice Department’s Office of Legal Counsel, which is the administration’s chief voice on the legality of policy, could be tougher.

It does not have an official published opinion on birthright citizenship, said spokesman Steven Stafford. But in 1995, when Congress was debating a law to curtail birthright citizenship, then-OLC chief Walter Dellinger III testified that it would take a constitutional amendment.

“Because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution,” he said.

Mr. Stafford said that was testimony and doesn’t represent an official opinion of the OLC.

Mr. Dellinger did not respond to a request for comment.

The 14th Amendment, ratified in 1868, says that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

Legal scholars say the debate is over what it means to be “subject to the jurisdiction thereof.”

Babies born to foreign diplomats, for example, are not granted automatic citizenship because their parents are considered still under the jurisdiction of their home governments.

Some conservatives argue that illegal immigrants who are in the U.S. without the government’s permission would not fall under the “jurisdiction” clause, and can also be excluded.

The Supreme Court has never grappled squarely with this question on its own, but in several major decisions involving the 14th Amendment has assumed that babies born to illegal immigrant mothers are U.S. citizens from birth.

An 1898 case involving a man born in the 1870s to Chinese parents has been seen as a key test. The Chinese parents weren’t citizens and in fact couldn’t be naturalized under the law at the time — yet the high court ruled their son, born on U.S. soil, was a citizen under the 14th Amendment.

The justices in that ruling did say the only exceptions they saw at the time were diplomats, children born to enemies during a time of hostile occupation of the U.S., and American Indians, many of whom were deemed to be subject to their own tribal governments and therefore independent of federal jurisdiction.

It would take treaties and acts of Congress to extend birthright citizenship to Indians.

Gabriella Muñoz and S.A. Miller contributed to this article.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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