(RNN) – President Donald Trump has said birthright citizenship “has to end” and believes he can enact that policy without having to amend the Constitution.
The 14th Amendment to the Constitution, adopted in 1868 following the Civil War to guarantee the equal citizenship rights of freed slaves, established the concept of birthright citizenship.
It 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.”
But in an interview with Axios, a part of which was published Tuesday morning, Trump said he believed he could end the practice with an executive order.
“It was always told to me that you needed the Constitutional amendment,” he said. “Guess what? You don’t.”
Sen. Lindsey Graham, R-SC, applauded Trump’s attack on birthright citizenship on Tuesday, tweeting in part “This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end.”
In addition, I plan to introduce legislation along the same lines as the proposed executive order from President @realDonaldTrump.
— Lindsey Graham (@LindseyGrahamSC) October 30, 2018
This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms.The 14th Amendment’s citizenship guarantee is clear. You can’t erase the Constitution with an executive order, @realDonaldTrump. https://t.co/8vGkjOlPsE
— ACLU 🗳 (@ACLU) October 30, 2018
He said he plans to sponsor legislation to support the potential executive order.
As Axios noted, such an action would face immediate legal challenges, and at least one Trump-appointed federal judge, James C. Ho of the Fifth Circuit Court of Appeals, has written such a policy would be unconstitutional.
The ACLU condemned the potential executive order via tweet, calling the move a “blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms. The 14th Amendment’s citizenship guarantee is clear.”
In practice, the 14th Amendment has conferred citizenship on anyone born in the U.S., regardless of the legal status of their parents.
The Supreme Court also explicitly held in the 1898 case United States v Wong Kim Ark that a child born to foreign citizens here permanently and legally “becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
Conservatives targeting birthright citizenship, however, have argued the amendment was not meant to include foreign citizens here without permanent legal status.
“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally,” Vice President Mike Pence said in comments to Politico on Tuesday.
Michael Anton, a former national security official in the Trump administration, wrote in The Washington Post in July that the framers of the amendment included a clause related to jurisdiction “precisely to distinguish people to whom the United States owes citizenship and those to whom it does not.”
“Freed slaves definitely qualified,” Anton wrote. “The children of immigrants who came here illegally clearly don’t.”
Trump, in the Axios interview, said of codifying that interpretation that, “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 in, has a baby and the baby is essentially a citizen of the United States for 85 years with all those benefits,” the president said. “It’s ridiculous, it’s ridiculous. And it has to end.”
His assertion that the U.S. is the only country in the world who offers birthright citizenship is false. Many countries in the western hemisphere offer birthright citizenship, Bloomberg reported. This includes Canada and Mexico.
Trump said he had discussed the idea with White House counsel and that it was “in the process, it’ll happen, with an executive order.”