NORTHAMPTON — President Donald Trump’s proposal to use an executive order to end birthright citizenship guaranteed under the 14th Amendment prompted swift denouncements on Tuesday from the state’s representatives in Congress and local legal experts on the constitutionality of such a move.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told “Axios on HBO” in an interview scheduled to air next Sunday, Nov. 4. “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
For the past 150 years, a provision of the 14th Amendment has granted citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil.
The president also falsely claimed the United States was the only country with such a right. More than 30 countries have birthright citizenship, including Canada and Mexico.
Lawmakers and legal experts were quick to call out the president’s stated plan as unconstitutional.
“Donald Trump has no authority to unilaterally repeal any fundamental provisions in the Constitution,” Bill Newman, director of the Western Massachusetts ACLU, said. “It would be a frightening and unconstitutional usurpation of power and it should be condemned by everyone regardless of their political leanings.”
Constitutional amendments require passage by Congress, with two-thirds approval from the House and Senate, before being ratified by three-quarters of states, according to Article Five of the Constitution. A constitutional convention, called by two-thirds of the states, could also propose an amendment that would still require ratification by three-fourths of the states.
Newman said Trump is bringing up these issues now in “a clear and transparent attempt to engender anti-immigration hatred just before the midterms.”
The 14th Amendment, ratified in 1868 during the period of Reconstruction after the Civil War, states: “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.”
“It has to end,” Trump said. “It’s in the process, it’ll happen with an executive order.”
Since the president has not signed an executive order and the White House has not provided further details of the plan, legal experts interviewed for this story said they could not comment on what would happen if Trump followed through on his plan.
Should the president sign the executive order, it would be met immediately with legal challenges that could eventually lead to the Supreme Court.
Rebecca Hamlin, associate professor of legal studies at the University of Massachusetts Amherst, cited an 1898 case, United States v. Wong Kim Ark, which addressed the birthright citizenship clause.
“The Constitution is clear about the fact, and the Supreme Court decided in 1898, that anyone born on U.S. soil is a citizen, regardless of the status of the parent,” Hamlin said.
The Supreme Court ruled in favor of Wong Kim Ark, the son of Chinese immigrant parents, determining that he had gained U.S. citizenship at birth.
“The president can’t amend the Constitution with an executive order; it’s very clear that it can only be amended through the constitutional amendment process,” Hamlin said.
“Donald Trump is not confused by that, his advisers aren’t either, and he just doesn’t care,” Hamlin said. “He’s triggering a constitutional crisis for political gain.”
U.S. Rep. James McGovern, D-Worcester, said Trump’s comments were a “last-minute diversion” made ahead of the midterm elections, while U.S. Sen. Edward Markey, D-Mass., said they were meant to stoke fear of immigrants.
“The president is trying to divert attention from the fact that he is trying to take away health care from people with pre-existing conditions by saying he will repeal the 14th Amendment by ways of an executive order,” McGovern said.
McGovern said the president does not have the power to overturn the Constitution through an executive order, and it is “another attempt to motivate the far-right base to get them to vote” in the November midterms.
Markey, in a tweet on Tuesday, characterized the president’s comments as “an attempt to stoke xenophobic resentment before the election,” adding that birthright citizenship is “enshrined in the Constitution and won’t be overturned.”
Luis Fieldman can be reached at lfieldman@gazettenet.com