Editor’s Note: John Avlon is a CNN senior political analyst and anchor. The opinions expressed in this commentary are his own. View more opinion articles on CNN.
Call it what it is: a desperate midterm election Hail Mary – President Donald Trump floating a proposal to eliminate birthright citizenship by executive order.
Let’s cut to the chase: This literally can’t happen.
In the President’s way is a little thing called the Constitution, which he swore under oath to uphold.
Birthright citizenship is a hot-button issue for anti-immigration activists, adding to Trump’s intentionally toxic rhetoric about a migrant “invasion.”
But birthright citizenship is embedded in the 14th Amendment of the US Constitution, which says, 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
This was passed in the wake of the Civil War, to ensure that slaves born in the United States were granted full citizenship, no matter the state laws.
That’s also one reason the 14th Amendment has been a perennial obsession of white nationalists and right-wing militia groups, such as the sovereign citizen movement.
But rarely if ever has this wingnut argument made its way to the Oval Office.
Play to the base prejudice aside, the President cannot undo the Constitution. That’s basic separation of powers stuff.
The President told Axios – which seemed tipped off to ask the question by the White House in advance of the launch of its HBO special series – that unnamed advisers had told him he could overturn birthright citizenship through the legislature or by executive order.
This is BS. No adviser with a passing understanding of the US government would seriously suggest this. Far more likely is that Trump was floating a trial balloon to change the national conversation and inflame the base.
But this trial balloon is particularly ironic given the conservative movement’s obsession with Obama-era executive orders, which it loudly argued marked an assault on the Constitution, calling him “King Obama” – and much worse. In contrast, they claimed to be “constitutional conservatives” – faithful to the vision of the Founding Fathers.
There’s nothing particularly wrong with executive orders – George Washington and Thomas Jefferson used them and they ballooned under Republicans Ulysses S. Grant and Teddy Roosevelt. In fact, Barack Obama used fewer executive orders than his predecessors George W. Bush, Bill Clinton and Ronald Reagan – though you’d never know it from watching Fox News during the last presidency. And then there’s this: Trump is on pace to exceed the number of Obama executive orders if he serves two terms. (Obama issued an average of 35 executive orders a year. If Trump were to issue no more executive orders this year, his average would be 43 per year.)
But having raised the issue as a threat to the Constitution, it is absurd that Republicans are now ignoring or even encouraging the action because a president of their party is in power. Even more absurd is the fact that Trump has been issuing executive orders while Republicans have unified control of government. Such orders are most rationally used to overcome an obstructive opposition in Congress.
Another fundamental Trump mis-truth is the idea that birthright citizenship is unique to the United States. It’s not. Canada and Mexico, and more than two dozen other countries, have similar statutes.
Vice President Mike Pence tried to support Trump when he said Tuesday, “We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment, ‘subject to the jurisdiction thereof,’ applies specifically to people who are in the country illegally.”
But Republican Rep. Justin Amash was right when he tweeted, “A president cannot amend Constitution or laws via executive order. Concept of natural-born citizen in #14thAmendment derives from natural-born subject in Britain. Phrase ‘and subject to the jurisdiction thereof’ excludes mainly foreign diplomats, who are not subject to U.S. laws.”
Sen. Mark Warner, a Democrat, made the point bipartisan: “This notion that he can simply violate the Constitution by executive order, let’s face it, no serious legal scholar thinks that’s real.”
As we’ve seen, some Trump defenders will point to “anchor baby tourism” as a problem in need of a solution. There are indeed properties that cater to this abuse of birthright citizenship. Trump should know – his own Trump-branded properties in Florida are often advertised by third parties to expectant Russian parents, as The Daily Beast reported back in 2017 when I was editor-in-chief. Physician, heal thyself. And the President can start by cracking down on the practice through law enforcement rather than threatening to ignore the Constitution.
But just because the President can’t unilaterally override the Constitution doesn’t mean he won’t try. He could sign an executive order, possibly against the legal advice of his Justice Department and immediately have the proposal blocked by suits from several states attorneys general. Because this isn’t a jump ball, the issue will fail on the merits when it reaches the courts.
By then the President may have milked this for political benefit. So make no mistake – this is play-to-the-base panic, a classic Trump attempt to distract and deflect. Don’t fall for it.