Letter: You can’t trump the Constitution with an executive order

Well, there he goes again:

No, Mr. Trump, the United States is not the only nation on earth that allows birthright citizenship. There are more than thirty countries that honor that right.

No, Mr. Trump, you can’t simply issue one of your childlike oversized show and tell executive orders to terminate birthright citizenship. The right is explicitly embedded in the Fourteenth Amendment to the Constitution of the United States. (“All PERSONS born . . . in the United States and subject to the jurisdiction thereof are CITIZENS of the United States . . .”)

I’m sure all your favorite originalist and textualist judicial thinkers can agree on this. In the end, Mr. Trump, you are going to have to pass what’s called a constitutional amendment to accomplish what you want. That’s a “constitutional amendment.” You might want to look it up.

Scott Newton

10 Responses to Letter: You can’t trump the Constitution with an executive order

  1. Dan Neukam October 30, 2018 at 4:17 pm #

    You are absolutely correct. But evidently a president can circumvent existing laws passed by congress as President Obama did relative to DACA individuals.

    • Daniel Neukam October 30, 2018 at 8:10 pm #

      I think you take everything he says literally instead of an opening salvo for negotiation. I just made a low ball offer on a golf bag for sale on facebook that I’m almost positive won’t be accepted. Hoping to get it cheaper than the asking price. Trump inflates his opening position in order to get what he is willing to accept. He’s a New York real estate developer which is an occupation most politicians would not be successful at.

  2. Scott Newton October 30, 2018 at 6:15 pm #


    I agree. Obama’s overreach was as to a federal statute. What I find stunning is that the president believes that with a flick of the pen he can, ex parte, abolish a portion of the Constitution that has existed for 150 years. Did he not pass eighth grade government class? If not, you have to ask who is giving him advice in the White House.

  3. Finally speaking out October 30, 2018 at 6:28 pm #

    Does “if congress won’t act, I have a phone and a pen” ring any bells? Democrats seem to have a funny way of forgetting history when it is convenient. I think it’s called the history of now.

  4. Scott Newton October 30, 2018 at 7:29 pm #

    The history of now is this: To amend the Constitution, two thirds of both houses must pass the proposed amendment, and then it must pass the approval of two thirds (38) of the states. Absent a constitutional convention, this is the only method of amending the constitution. In their wisdom, the founders made this as difficult as possible.

  5. Finally speaking out October 30, 2018 at 8:26 pm #

    You are correct. And the closer we get to a convention of states, the closer we get to giving many of the powers back to the states instead of federal government overreach. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” Then California, New York, Illinois and the like can do as they please, but should receive no federal funding from the taxpayer for their irresponsible spending on programs and illegal immigrants which is bankrupting their states. When these states are solely responsible for funding these programs that most Americans don’t agree with, you will see the mass exodus of individuals and businesses from these states, furthering their decline.

    • Matt October 31, 2018 at 2:39 pm #

      Actually it is interesting that both the government and individuals in the state of Indiana are more dependent on the federal government than California and New York, in fact Indiana is much more dependent. So if ties to the federal government are cut off, it will hurt Indiana much more than other states. This is according to a study conducted by WalletHub which is a personal finance firm (https://wallethub.com/edu/states-most-least-dependent-on-the-federal-government/2700/)

  6. Mike October 31, 2018 at 10:47 am #

    I also agree that President Trump can’t change birthright citizenship with a stroke of the pen, and I don’t believe he is quite that naive. His business sense is at play here in that he has at least opened the discussion with a goal of getting some change accomplished. Unlike his predecessor, President Trump has pushed Congress to act rather than circumvent simply by executive order.
    I noticed that you abridged the first sentence of Section 1. The full sentence reads, “All persons born or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This begs the question as to whether the the mother – an illegal alien – is subject to the laws (“jurisdiction”) of the United States at the time she gives birth. By extension, one might argue that the child is not a citizen of the US at birth but rather is a citizen of the mother’s home nation. Let’s use England as an example. The child of a US citizen who is a resident of England is not granted English citizenship at birth but is considered a citizen of the US.
    Don’t misunderstand. I understand why people migrate to the US to get a better life for themselves and their children, and I have no issue with those who do so legally. Congress has failed to do anything but complain and point fingers at the opposing parties rather than concentrate on developing a sensible immigration policy that protects the immigrant and the citizen alike. Maybe President Trump’s statement will get a productive conversation started.

  7. Scott Newton October 31, 2018 at 4:37 pm #


    The noun in the operative phrase, “persons born” would, by its plain meaning, refer to the child born, not to the mother giving birth. That born child would immediately be subject to the jurisdiction of the United States.

    Reminds me of a law school question.s

  8. Daryl Hensley October 31, 2018 at 8:16 pm #

    Actually President Trump may have the 14th Amendment on his side. In the 1898 U.S. Supreme Court case U.S. vs Wong Kim Ark. The Supreme Court in a 6-2 decision made the distinction in their majority opinion that the phrase “subject to the jurisdiction thereof” to mean that the person is here and subject to U.S. law. “The Supreme Court’s majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to at least some children born of foreigners because they were born on American soil (a concept known as jus soli)”.

    The author of the bill, Jacob Howard (MI), was not referring to aliens who traveled to the U.S. but to people who are born in the U.S., primarily African American slaves. The law in 1866 was vague on how to handle citizenship to those aliens born here and whose parents were not working for a foreign government (employee or soldier). The 1898 Court interpreted the law not using the Congresses intent in writing of the law. Instead of striking down the law and asking Congress to define the law further, the court took an activist position and defined it themselves. This is the opening for the current court. Activist decisions from the Supreme Court are subject to change from a later U.S. Supreme Court, even ignoring precedent, (stare decisis).

    A key provision in the 1898 decision was that Wong Kim Ark’s parents, though not U.S. citizens, were in the U.S. legally, “domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China.” The 1898 U.S. Supreme Court decision list three provisions.

    1. Born here to legal immigrants.
    2. Who are legally employed.
    3. Not working for a foreign government.

    Trump may have the ability to interpret the 1898 decision to include those additional requirements.

    It is amazing that both parties embrace the courts changing the constitution by court activism except when it goes against their political ideology.

    Daryl Hensley, Jasper IN