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Caravan Crisis: Can Trump End Birthright Citizenship With an Executive Order?

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The 14th Amendment to the US Constitution was written to give citizenship to the children of former slaves. That was a long time ago. Now, it's being used by people entering the US illegally to have so-called "anchor babies" who are granted full US citizenship.

Does President Trump have the power to strike down birthright citizenship, which is backed up by the 14th Amendment, with the stroke of his pen? That depends on who you ask.

Dr. Bradley Jacob, a constitutional expert at Regent University School of Law said, "Well, in my view the president's ability to change the law through executive orders is pretty limited. We have a Constitution which is the supreme law of the land and we have statutes enacted by Congress which are the laws as long as they're consistent with the Constitution. The question then really becomes, can we treat children of illegal immigrants as being not subject to the jurisdiction of the United States. Constitutional scholars differ on that question."  

What Trump is doing is forcing a court battle, Jacob said.

Tom Fitton of Judicial Watch says the president's idea is worth considering.

"I just think we just have to be very direct in asking questions as to whether or not birthright citizenship is a bridge too far in terms of benefits to illegal aliens," Fitton said.  

Even the future Democratic Senate Majority Leader argued from the Senate floor in 1993 that "no sane country" would allow birthright citizenship.  

"If making it easy to be an illegal alien isn't enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again," Reid said.

President Trump announced his plan in an exchange with Axios on HBO, which airs November 4th.

Jonathan Swan, Axios reporter: "On immigration some legal scholars believe you can get rid of birthright citizenship without changing the Constitution?"

Trump: "With an executive order."

Swan: "Exactly, right. Have you thought about that.

Trump: "Yes."
 
Swan: "Tell me more?"

Trump: "It was always told to me that you needed a constitutional amendment. Guess what? You don't, you don't. Number one. Number one you don't need that..."

Swan: "I mean, that's in dispute. That is very much in dispute."

Trump: "Well, you can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order. Now how ridiculous, we're the only country in the world where a person comes and has a baby and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It's ridiculous. It's ridiculous and it has to end."

Swan: "Have you talked about that with counsel?"

Trump: "Yeah, I have."

Swan:  "So where in the process?"

Trump: "It's in the process."

But the top Republican in Congress, Speaker Paul Ryan, said the president does not have that power.

"Well you obviously cannot do that, you cannot end birthright citizenship with an executive order," Ryan said. "We didn't like it when Obama tried changing immigration laws via executive action. I think in this case the 14th amendment is pretty clear."

The backdrop for the President's threat is the caravan with thousands of illegal migrants approaching the US-Mexico border, and a midterm election where addressing illegal immigration has huge appeal for the president's base.

Trump told supporters in Illinois,"I wish I could just tell them -- and I say it, 'Caravan, turn around. You're not coming in. You're not coming in. I'm sorry.'"

The president is sending more than 5,000 active duty troops to the border to stop it.

If the president does spark a court battle over the 14th Amendment, one of the questions for the court is fairly easy. Does a law written to help freed slaves already in the United States, apply to illegal foreigners?

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About The Author

Dale
Hurd

Since joining CBN News, Dale has reported extensively from Western Europe, as well as China, Russia, and Central and South America. Dale also covered China's opening to capitalism in the early 1990s, as well as the Yugoslav Civil War. CBN News awarded him its Command Performance Award for his reporting from Moscow and Sarajevo. Since 9/11, Dale has reported extensively on various aspects of the global war on terror in the United States and Europe. Follow Dale on Twitter @dalehurd and "like" him at Facebook.com/DaleHurdNews.