“Obviously, even if he did, it would be subject to court challenge,” he added.
Suzanna Sherry, a professor of law at Vanderbilt Law School specializing in constitutional questions, said those advising Trump that he can change the Constitution via executive order are simply mistaken. “He can’t do it by himself and, in fact, he can’t do it even if Congress passed a statue.”
“I think it would take a Constitutional amendment,” she said. “I don’t see it as having any plausible legal basis,” she said.
But others suggest the president may have an opening.
Jon Feere, a senior adviser at Immigration and Customs Enforcement, is among those who has long argued that that the president could limit the citizenship clause through executive action.
“A president could direct his agencies to fall in line with his interpretation of the Supreme Court’s rulings, which are arguably limited to children of permanently domiciled immigrants (the court has never squarely ruled on children born to tourists or illegal aliens). He could direct his agencies to issue Social Security numbers and passports only to newborns who have at least one parent who is a citizen or permanently domiciled immigrant,” he wrote in 2015 in an op-ed in the Hill.
In the final days before the Nov. 6 midterms, Trump has emphasized immigration, as he seeks to counter Democratic enthusiasm. Trump believes that his campaign pledges, including his much-vaunted and still-unfulfilled promise to quickly build a U.S.-Mexico border wall, are still rallying cries for his base and that this latest focus will further erode the enthusiasm gap.
Trump voiced his theory that birthright citizenship could be stripped during his campaign, when he described it as a “magnet for illegal immigration.” During a 2015 campaign stop in Florida, he said: “The birthright citizenship – the anchor baby – birthright citizenship, it’s over, not going to happen.”
The Citizenship Clause of the 14th Amendment 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.”
The amendment was passed by Congress in 1866 during the period of Reconstruction after the Civil War. It was ratified in 1868 by three-fourths of the states. By extending citizenship to those born in the U.S., the amendment nullified an 1857 Supreme Court decision (Dred Scott v. Sandford), which ruled that those descended from slaves could not be citizens.
