An Executive Order Cannot Override the 14th Amendment

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Donald Trump today suggested he might move to end birthright citizenship through an executive order. Several hours later, Senator Lindsey Graham announced that he not only supported the Trump’s move, but would introduce legislation to end birthright citizenship.

Neither Trump nor Graham can end birthright citizenship. Birthright citizenship is established by the Fourteenth Amendment. Serious legal scholars across the ideological spectrum agree that only a constitutional amendment, not legislation and certainly not an executive order, can end birthright citizenship.

The Fourteenth Amendment is one of the cornerstones of modern protections for civil liberties. It was passed during Reconstruction in order to rectify the horrifying decision of the Supreme Court that held African-Americans could never be citizens of the United States. It was meant both to grant citizenship rights to the newly emancipated slaves and to stop the former slave states of the Confederacy from violating their civil liberties.

Trump’s public desire to alter one of the benchmarks of modern American liberty is part of a public campaign of racist and xenophobic demagoguery. In the last few weeks, Trump has escalated his already toxic rhetoric. He has engaged in a campaign of fear mongering about migrants, comparing individuals seeking asylum at US ports of entry (the lawful way to apply for asylum under US law) to invaders, and deploying the US military domestically along the border. His press secretary Sarah Huckabee Sanders has, when pressed by the media, declined to say the Trump administration would not suspend habeas corpus (something only Congress can do) or posse comitatus, a law that forbids the military from enforcing domestic laws, in response to Central American migrants seeking asylum in the US.

It’s unclear if Trump or Graham truly intends to follow up on any of these proposals. But that does not mean there’s not cause for alarm. We’ve already seen that this type of demagoguery and fear mongering has very real consequences. And we understand why vulnerable communities feel threatened by these actions.

Trump lacks the constitutional authority to implement his odious destruction of the Fourteenth Amendment and DRAD opposes any attempts to limit the civil liberties protections of the US Constitution.