Trump wants to use an executive order to override the 14th Amendment. Here's why that won’t work

Executive orders must work within the parameters of the US Constitution

Donald Trump has suggested he will end the centuries-long, amendment-protected practice of providing birthright citizenship in the United States by signing an executive order.

The only problem? He can’t.

The president said in a Tuesday interview that birthright citizenship “has to end,” repeatedly calling the practice “ridiculous” and suggesting he can put a halt to it through the signing of an executive order.

“It was always told to me that you needed the Constitutional amendment,” he said in a recent Axios interview, a portion of which was released Tuesday morning. “Guess what? You don’t.”

Birthright citizenship is an American tradition that was adopted into the US Constitution in 1868 through the ratification of the 14th Amendment.

That amendment states “all persons born or naturalized in the United States” are granted citizenship, including former slaves who had just been freed following the US Civil War.

The amendment was explicitly found to protect child immigrants born in the United States in the 1898 case US v Wong Kim Ark. At that time, the Supreme Court held that children born to foreigners permanently and legally residing in the country “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.”

A later 1982 case Plyler v Doe also applied the 14th Amendment to immigrant children, holding that the denial of public school admission to undocumented immigrant children violates the amendment’s equal protection clause.

Mr Trump criticised the practice on Tuesday while discussing immigration, saying, “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”.

“It’s ridiculous. It’s ridiculous. And it has to end,” he continued. “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”

However, executive orders cannot amend — and must work within — the parameters of the US Constitution.

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Regardless, Mr Trump appeared to court controversy by suggesting he could demand the end to birthright citizenship without the arduous process of amending the constitution; a move that would typically require two-thirds support from both Houses and three-fourths support from all 50 states.

The president could otherwise urge for a Constitutional Convention, which would require the support of two-thirds of the legislatures, and any amendments made during the convention would still need three-fourths support of the states.

It seems unlikely the vast majority of US lawmakers would suddenly seek to ratify birthright citizenship out of the constitution, however, it is among the extremely limited ways it may be legally possible.

If the president were to sign an executive order denying the practice, either forth outright for all non-citizens or specifically for children born to parents lacking permanent legal status, it would almost immediately be considered illegal by numerous US courts.

Once an executive order is deemed illegal, it is overturned — which has happened on numerous occasions. In fact, earlier this year a US District judge ruled Mr Trump exceeded his authority by signing an executive order that made it easier to fire federal employees, striking down key components of the mandate.

Previous versions of his executive orders banning travel to the US from several Muslim-majority nations was also blocked by courts across the country.

But with seven days until the first national election since Mr Trump was elected, the president appears to be rallying his base around the issues that helped him secure the Oval Office in 2016.

The president has repeatedly pointed to a migrant caravan nearly 1,000 miles away in southern Mexico as a major cause for concern ahead of the crucial midterm elections — and a reason to vote Republican, suggesting the Democrats want “open borders” and to allow in unlimited immigrants across the US-Mexico border.

On Tuesday, the president did not provide a timeline as to when he plans on signing an executive order, only saying it was “in the process,” adding, “it’ll happen — with an executive order.”