President Donald Trump announced earlier this week his intention to issue an executive order that would prevent the children of undocumented immigrants from becoming American citizens — even if they were born on U.S. soil. But according to Fox News judicial correspondent Andrew Napolitano, the president can’t put an end to birthright citizenship just like that.
“Once here, the baby born is an American citizen,” Napolitano said. And according to the judge, only a Constitutional amendment could change that.
“It has to end.”
Trump first expressed his desire to deny birthright citizenship to the children of illegal aliens on Monday in an exclusive interview with Axios on HBO. Trump said that the move is currently in progress and that “it’ll happen…with an executive order.”
“It’s ridiculous. And it has to end,” Trump said of the birthright citizenship policy.
But some legal scholars, including Napolitano, say that Trump’s planned order is unconstitutional based on the text of the 14th Amendment, the first section of which reads:
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.
The president has argued that the automatic citizenship of the children of illegal immigrants, which he says has cost “our [c]ountry billions of dollars,” is not protected by the 14th Amendment, because the provision only mandates the citizenship of those “subject to the jurisdiction” of the United States.
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree…..
— Donald J. Trump (@realDonaldTrump) October 31, 2018
But Napolitano said on Fox’s Outnumbered on Wednesday that the phrase “and subject to the jurisdiction thereof” doesn’t apply here.
According to Napolitano, the phrase “was put in [the 14th Amendment] to make sure that someone who is not subject to our jurisdiction, like a foreign diplomat or a foreign head of state who gives birth here, that [their child] is not an American citizen.”
“Illegals can be prosecuted, illegals can go to court and sue,” Napolitano said, noting 150 years of legal precedent to back up his claims. “They are as ‘subject to the jurisdiction’ as those of us who were born here.”
House Speaker follows suit
Napolitano’s views seem to be shared by House Speaker Paul Ryan (R-WI), who is not seeking re-election this November. Ryan said in a Tuesday radio interview that the president “cannot end birthright citizenship with an executive order.”
“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution,” Ryan said. “I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment’s pretty clear, and that [changing it] would involve a very, very lengthy Constitutional process.”