Vocal proponents of ending birthright citizenship acknowledge that view has long been dismissed as a far-right fantasy.
Former Trump White House strategist Steve Bannon, who supports the idea of ending birthright citizenship and favored the broad use of executive actions when he served in the administration, wanted to keep the hot-button issue on the back burner.
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And when the idea came up at a Heritage Foundation symposium in September, one scholar at the conservative think tank cautioned that those who “even hover near the question of birthright citizenship immediately feel the wrath of the ruling class.”
But President Donald Trump has never been cowed by elite opinion, and on Tuesday, less than a week before the midterm elections, he made it a major political flashpoint, telling Axios in an interview posted Tuesday that he was preparing an executive order to end the Constitutional guarantee of American citizenship to anyone born within the U.S.
In doing so, Trump resurfaced a controversial and legally dicey idea he first floated early in his presidential campaign, one that a small and dedicated group of conservatives had pushed for years before Trump arrived on the political scene. They include a handful of intellectuals associated with conservative think tanks, including the Claremont Institute, based in California. Attorney General Jeff Sessions is also a longtime backer of the idea.
Whether Trump will actually follow through on the idea is unclear: He only backed the idea when prompted by questioning, and many Republicans, including House Speaker Paul Ryan have said Trump cannot end birthright citizenship by executive order. They say a constitutional amendment is necessary to make the change. But as the president looks to rally his base between now and next Tuesday, the idea could be part of his closing argument for the midterm elections.
“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 for 85 years, with all of those benefits,” Trump said in the Axios interview. “It’s ridiculous. It’s ridiculous. And it has to end.” In fact, Canada, Mexico and many other countries also grant birthright citizenship.
Trump’s response when asked about the issue of birthright citizenship caught some administration officials by surprise. One of those people said that the White House counsel’s office had been reviewing the proposal — among many other immigration issues — but that it had not been under serious consideration by the president’s legal team.
Some former advisers expressed frustration at the president’s surprise admission that he is considering an executive order, viewing it as an indication of growing anxiety about Republicans’ chances of keeping hold of the House. From their vantage point, the president’s decision to raise the issue now was a concession of sorts that the story about migrant caravans crossing the border illegally was not getting the sort of television coverage he had hoped.
Trump has discussed revoking birthright citizenship periodically over the last two years in the context of broader discussions on immigration. It’s a move favored by Sessions, as well as White House adviser Stephen Miller and Kansas Secretary of State Kris Kobach, an immigration hawk and longtime Trump ally who drove the idea during the spring of 2017 when he was being considered for a senior position at the Department of Homeland Security.
The idea of challenging birthright citizenship also has support from key pro-Trump think tankers in Washington. “Universal birthright citizenship is a misinterpretation of the 14th Amendment and is inconsistent with the intent of the amendment’s framers and ratifiers,” said Amy Swearer, a legal policy analyst at the Heritage Foundation. “The amendment was intended primarily to guarantee citizenship rights for newly freed slaves, not to create a universal right for anyone temporarily or illegally in the country, and therefore not subject to the complete jurisdiction of the United States.”
Swearer condemned the policy for “rewarding and encouraging illegal and exploitative immigration.”
The White House counsel’s office, which the president said gave him the green light for a forthcoming Executive Order, told Trump during at least some of these debates that it was unlikely he had the authority to do away with birthright citizenship unilaterally, according to two sources familiar with the discussions. “Unless it became a policy priority, we didn’t want to spin our wheels for long periods of time justifying the outer edges of authority for something that was probably going to be very inflammatory as well,” said one of the people involved in those discussions.
Trump has rarely taken this sort of constitutional guidance to heart, however, instead pushing advisers to draft executive orders on a range of controversial issues and declaring: “Let them sue me!”
Ending birthright citizenship, meanwhile, on Tuesday looked like it was on its way to becoming a policy priority — or at least a political one.
Some in the White House attribute the new push to arguments that have hit the mainstream — and Trump’s radar — thanks to Michael Anton, a former spokesman for the National Security Council, who serves as something of a bridge between Trumpworld and the world of Claremont.
Anton made the case for ending birthright citizenship in a July Washington Post op-ed that cited the arguments of Ed Erler, a senior fellow at the Claremont Institute and a constitutional scholar who has for years advocated an end to birthright citizenship. “An executive order could specify to federal agencies that the children of noncitizens are not citizens,” Anton wrote. “Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?”
Anton has not spoken to the president since he left the White House in April, and did not alert the White House to his Post piece in advance. But some White House staffers have contacted him to say that the president welcomes his arguments and encourages him to continue his advocacy. Trump aides have also acknowledged that the piece, and the ensuing controversy around it, helped to elevate the president’s interest in the issue.
Two months after publishing his essay, Anton pressed the case alongside Erler at the Heritage Foundation. “The vitriol over the topic implies that elite opinion, or the press, or international organizations should define on behalf of American citizens what constitutes citizenship in America,” the Heritage Foundation scholar Arthur Milikh said in introductory remarks at the event.
Trump’s comments Tuesday certainly drew anger from critics of his immigration policies. “This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms,” the ACLU said in a statement on Twitter.
The policy divided Republicans in Congress: Sen. Lindsay Graham (R-S.C.), a frequent Trump ally, tweeted: “Finally, a president willing to take on this absurd policy of birthright citizenship.” Graham added that he planned “to introduce legislation along the same lines as the proposed executive order from President @realDonaldTrump.”
Ryan, who is retiring, sought to quash the idea from the start: “You cannot end birthright citizenship with an executive order,” he said in a radio interview with a local Lexington, Kentucky, station. “We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution.”
Anton told POLITICO he sees himself as just that: a conservative who believes in the Constitution.
“The president is the elected executive, and all of these agencies report to him,” Anton said. “Seems to me he’s perfectly within his power to tell them to stop doing something that no one has ever told them to do, and they don’t have the constitutional or legal authority to do.” He declined to comment, however, on the significance of the timing of Trump’s announcement.