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Five Things to Know About the 14th Amendment and Trump’s Plan to End Birthright Citizenship

On Tuesday, Axios dropped a bombshell: President Donald Trump is considering an executive order to end birthright citizenship, changing the way the 14th Amendment is applied in immigration law. The president has taken one side in a robust constitutional debate, and his move should encourage Congress and the Supreme Court to consider the issue.

Here are 5 things to know about the situation.

1. What Axios reported.

President Trump gave an interview to "Axios on HBO," a new four-part documentary series launching this coming Sunday. In that interview, Trump confirmed that an executive order to reverse birthright citizenship is in the works, Jonathan Swan and Stef W. Right reported.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," the president said. "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."

Explaining birthright citizenship, Trump remarked, "We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits."

According to a 2009 Harvard paper, however, 30 out of 35 sovereign nations in the Americas have birthright citizenship, immediately extending citizenship to all people born in the country, even if their parents are illegal immigrants. It is important to note, however, that birthright citizenship is a New World philosophy — most countries outside the Western Hemisphere do not have birthright citizenship.

This seems to contradict the plain text of the first section of 14th Amendment:

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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These remarks set off a firestorm of controversy.

2. Responses.

Democrats criticized Trump immediately, but even Republicans attacked the idea.

"Mr. President, amending any part of the Constitution by Executive Order puts every part of the Constitution at risk of being amended by Executive Order," Rep. Al Green (D-Texas) tweeted. "Today it’s the 14th Amendment. Tomorrow it could be the 1st. It’s OUR Constitution not YOUR Constitution." He concluded with a hashtag "#ImpeachmentIsNotDead."

Rep. Eric Swalwell (D-Calif.) — the congressman who said Trump was "complicit" in the murder of Jamal Khashoggi without evidence — argued that Trump "is willing to delete a passage from the Constitution to target people who don’t look like him. BUT he’s unwilling to do anything to protect you from violence, arguing that it would conflict with the Second Amendment in same Constitution."

Republicans also criticized Trump.

"Birthright citizenship is protected by the Constitution, so no [Donald Trump] you can't end it by executive order," Rep. Carlos Curbelo (R-Fla.) tweeted. "What we really need is broad immigration reform that makes our country more secure and reaffirms our wonderful tradition as a nation of immigrants."

"A president cannot amend Constitution or laws via executive order," Rep. Justin Amash (R-Mich.) tweeted. "Concept of natural-born citizen in [the 14th Amendment] 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."

So, why does Trump think he can change the way the 14th Amendment is applied?

3. History of the 14th Amendment.

Michael Anton, a former national security official in the Trump administration, argued in The Washington Post that the president could, via executive order, "specify to federal agencies that the children of noncitizen are not citizens" merely because they were born on U.S. soil.

The 14th Amendment was ratified in July 1868, and it was specifically intended to ensure that former slaves had equal citizenship rights. The amendment struck down the horrific Dred Scott v. Sandford (1857) Supreme Court ruling that black Americans had no rights. For this reason, it is arguable that the amendment should not be interpreted as intending to give citizenship to the children of illegal immigrants.

As Axios reported, conservatives have argued that the 14th Amendment was not intended to provide citizenship to illegal immigrants or those on temporary visas, but only to children born in the U.S. to lawful permanent residents.

John Eastman, a constitutional scholar and director of Chapman University's Center for Constitutional Jurisprudence, told "Axios on HBO" that the Constitution has been misapplied over the past 40 or so years. He argued that the line "subject to the jurisdiction thereof" originally referred to people with full, political allegiance to the U.S.

[It is important to note, as Andrew McCarthy did over at National Review, that Congress passed Section 1401 of the immigration and naturalization laws, which appears to codify in law what the 14th Amendment says. As McCarthy argued, "that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then)."]

Under the Vienna Convention on Consular Relation, article 36, illegal immigrants arrested or detained in the United States have a right to communicate with the consulate of the country from which they came, suggesting that they may fall outside of the United States' jurisdiction.

Axios also cited Judge James C. Ho, who was appointed by Trump to the Fifth Circuit Court of Appeals. Ho claimed that the "subject to the jurisdiction" line refers to the legal obligation to follow U.S. laws, which applies to foreign visitors and immigrants, with the exception of diplomats. Ho argued that Trump's proposed executive order would be unconstitutional.

4. The current situation.

Trump first voiced his opposition to birthright citizenship in 2015. By that time, the number and percentage of births to illegal immigrants in the U.S. had decreased, but it remained rather high, according to the Pew Research Center.

In 1980, roughly 30,000 babies were born to illegal immigrants in the U.S. (1 percent of all U.S. births). That number rose to 45,000 in 1985 (1 percent), 95,000 in 1990 (2 percent), and 170,000 in 1995 (4 percent). It broke 200,000 in the 2000s, and has remained above that threshold since.

In 2000, 240,000 babies were born to illegal immigrants (6 percent of births). By 2005, that number climbed to 355 (9 percent), and it reached a peak of 370,000 (9 percent of births) in 2006. By 2010, the number had fallen to 320,000 (8 percent), and in 2014 only 275,000 babies were born to illegal immigrants (7 percent).

Despite the decline, these numbers still represent a staggering amount of people — and a large percentage of Americans born in the early 2000s.

5. Constitutionality.

The key question remains: Can President Donald Trump do this? According to former presidents Andrew Jackson and Abraham Lincoln, the answer is most likely yes — but Congress and the Supreme Court also have a say on the issue.

Many Americans believe that the Supreme Court is the final word on constitutionality, but the Constitution clearly gives power to three co-equal branches: the legislative (Congress), the executive (the President), and the judiciary (the Supreme Court). Both Andrew Jackson and Abraham Lincoln circumvented a Supreme Court decision — in Lincoln's case, Dred Scott — on the grounds that they had equal say in constitutionality.

The Supreme Court has a unique say when it comes to specific cases, but it is not the only branch that can declare things constitutional or unconstitutional. This kind of judicial supremacy is out of keeping with the spirit of the Constitution.

President Donald Trump may well issue his executive order (the administration is under his domain), but the Supreme Court and Congress have every right to challenge this interpretation. Congress can pass a law explicitly codifying birthright citizenship (in a stronger manner than the 1952 law), and the Supreme Court can rule in a specific case (should the child of illegal immigrants sue the president in federal court).

As for Rep. Al Green's suggestion that Trump's executive order would put the First Amendment in jeopardy, that is nonsense. Trump is not weakening the specific purpose of the 14th Amendment — extending equal rights to former slaves — but dealing with an ancillary issue.

Indeed, Sen. Jacob Howard (R-Mich.), who introduced the 14th Amendment to the U.S. Senate, insisted that the amendment "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

If Trump issues this order, he will be issuing a clear interpretation of "subject to the jurisdiction thereof" that accords with Howard's declaration and the apparent intent of the Congress that ratified the amendment. Thornier issues may arise surrounding the 1952 immigration law, but Trump's executive order may be justified as being in keeping with the original intent of the 14th Amendment.

It seems both Democrats and Republicans in Congress would likely oppose the president on this issue. If they can gain a veto-proof majority, they should merely pressure Trump to drop his suggestion. The Constitution does not make the Supreme Court the sole arbiter of constitutionality, but it also does not make the president its sole arbiter. If Trump starts this battle, he may not like its conclusion.

Even opponents of birthright citizenship like McCarthy have insisted that Congress should take the lead on this issue.

Follow the author of this article on Twitter at @Tyler2ONeil.