Well, he can certainly try:
It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.
When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
“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,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.”
The Axios article then goes on to provide a link to the fact that “more than 30 countries, most in the Western Hemisphere, provide birthright citizenship.” But what is left out of the Axios piece is the fact that those other countries are not first-world countries, except for Canada. It’s not as though Honduras has a big problem with what’s known as “birth tourism,” or with many thousands of people forming caravans to come to that country illegally.
The developed countries of Europe do not grant birthright citizenship to people born there unless (for example, in many of them) “at least one parent is a citizen of the country or a legal permanent resident who has lived in the country for several years.” In fact:
No European country presently grants unconditional birthright citizenship; however, most countries in the Americas, e.g., the United States, Canada, Mexico, Argentina, and Brazil do so. In Africa, Lesotho and Tanzania grant unconditional birthright citizenship,[citation needed] and so do in the Asian-Pacific region Fiji, Pakistan, and Tuvalu.
Other countries such as Austraila do not grant it either. Basically, only Canada of all the developed countries shares our devotion to birthright citizenship.
I’ve written rather extensively about the birthright citizenship question, in this post as well as this one. The issue is hardly new, and what Trump said recently to Axios is not new either, unless the news is that very soon he’s really going to announce this by executive order. I tend to doubt that’s going to be happening all that soon, but Trump has surprised me before.
Here’s what I wrote on that issue back in July, and I think it bears repeating:
I want to add that Anton [in this article] suggested Trump do this [end birthright citizenship] via executive order, and I don’t agree with that. Of course, Trump could try it and there would immediately be a court challenge. I believe he would probably lose that challenge, but it would compel SCOTUS to clarify the issue, a process which has its own merits.
I believe, however, that the better approach would be a statute passed by Congress. This would almost certainly not happen, for the same reasons that the previous bill introduced by Vitter (I have discussed Vitter’s proposed bill in my 2014 post) did not go anywhere. If one were to be passed, however, it would also be challenged and would almost certainly ultimately go to the Court for clarification.
The safest route would be a constitutional amendment. This is quite difficult to accomplish, of course, but it would be the answer to those who believe that the Constitution’s 14th Amendment is properly read as requiring birthright citizenship even for the children of illegal aliens and/or birth tourists.
So I think it would end up in the Supreme Court, unless the Amendment route is followed. The legal issues are rather complex, and a matter of interpretation of the Fourteenth Amendment’s “under the jurisdiction” phrase. Here’s Anton’s argument that the Constitution does not call for birthright citizenship:
You have to read the whole 14th Amendment. There’s a clause in the middle that people ignore or they misinterpret — “subject to the jurisdiction thereof” — ‘thereof’ meaning of the United States. What they’re saying is, if you’re born on US soil subject to the jurisdiction of the United States, meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. If you’re here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.
If you read the debate about the ratification of the 14th amendment, all the senators who are discussing what this is meant to do and what it means are very clear on this point; I tried to point that out. I expected the left would blow up and get angry which they did. What I didn’t expect, at least not to this extent, and what was very disappointing was how angry the so-called conservative intellectuals got with me, and they essentially said any opposition to birthright citizenship is racist and evil and un-American…
Anton advanced a more detailed version of his argument in this article.
As I said, I’m not at all sure this is imminent. Trump may just be floating the idea at the moment.
[ADDENDUM: And Lindsay Graham says he will introduce a bill on this:
Republican Sen. Lindsey Graham said he plans on introducing birthright citizenship legislation sometime after the elections. The senator applauded the president’s planned move saying in a statement: “Finally, a president willing to take on this absurd policy of birthright citizenship.”
That’s the role Vitter used to take.]