The 14th Amendment: Trump v The Constitution.

The 14^th Amendment: Trump v The Constitution.

Long before Donald Trump’s election for President, he revealed his attitudes to immigrants, especially illegals. Remember that speech about Mexicans: “they are murderers and rapists. Some may be good people.” Since his election two years ago, illegals have been firmly in his cross wires. In addition to demanding funding from Congress for The Wall – I thought he said the Mexicans were paying – he banned people en-masse from Muslim based Middle East countries. Immigration and Customs Enforcement has cracked down hard on the right to enter USA. Customs & Border Protection has separated children who are American citizens from their allegedly illegal immigrant parents. Does this government-inspired action leave a bad taste? Yes. Does Trump care? That’s rhetorical.

From time to time in the twentieth century, America was gripped by Red Scares, where US citizens were led to believe communists were taking over its government. The phrase “better dead than red” abounded. We can see an extension of red scare in the current Trump rhetoric about the caravan, the thousand or so people from Central America making their way through Mexico to the US border. This week, Trump spoke of them as “a million or more.” Armed troops have been placed at the Mexican border.

Now Trump wants to up the ante. He announced he had power, through executive order, to override the Constitution by removing rights secured by the 14^th Amendment. He also vowed to place even tougher restrictions on asylum seekers. To support his case, he falsely linked the “caravan” with a convicted murderer who killed two California deputies. He added: "Democrats want open borders and want to invite caravan after caravan into our country," He then led the crowd in a chant of "Build that wall! Build that wall!" I suppose it makes a change from “Lock her up.”

The 14th Amendment to the United States Constitution, adopted in 1868, addressed citizenship rights. It followed on closely from the 13^th Amendment which abolished slavery. Both were passed in response to issues relating to ending slavery following the end of the American Civil War. The 14^th Amendment’s first section is one of the most litigated parts of the Constitution. It formed the basis for the 1954 landmark decision in Brown v. Board of Education, desegregating public schools.

The Amendment's first section has several clauses. With regard to 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The history of the 14^th is fascinating but I have insufficient space to tell it all. The Amendment ensures that children born in the United States and subject to its jurisdiction become American citizens at birth. Incidentally, children born abroad to an American citizen also acquire citizenship if the birth is registered at an American Embassy or Consulate.

The contentious words of the Amendment are “subject to the jurisdiction.” The right wing National Review asserts Trump’s right to change the terms of the 14^th Amendment by executive order. It suggests the intent of the framers of the 14th Amendment is clear because subsequent federal legislation legislation extended citizenship to Native American. How does this support a right of executive order to vary the Constitution? All it seems to suggest is that Congress has constitutional power to clarify who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Had Congress exceeded its remit, I have no doubt the Supreme Court would have decided that such statute was unconstitutional.

The National Review provides no argument supporting a Presidential right to change the Constitution by executive order. Instead, it merely argues that Congress has an involvement. Furthermore, it makes no mention of the power of the courts. Let’s assume that a statute limiting the definition of “jurisdiction” and the right to citizenship is passed by both Houses of Congress. Would not the lawyers wade in and take the case all the way to the Supreme Court? Is the Court going to approve a law that a baby born within the American jurisdiction will not enjoy the constitutional right of American citizenship? Even with a right wing balance on the Court, I cannot see this happening.

I believe neither the President nor Congress has to right to alter, limit or change the Constitution unless two thirds of both the House of Representatives and the Senate propose an Amendment and three quarters of the States ratify such Amendment within the time deadline set. (There are other methods but suffice it for the blog to set out these most important rules.)

I am unaware of any precedent to support Trump’s stance on the power of a Presidential executive order overriding the Constitution. However, there are plenty of US attorneys who read this blog who will put me right.  If they do so, I’ll let you know. Mind you, if The Donald didn’t make outrageous claims concerning the extent of his power, his Presidency would be dull. It might also tend towards the legitimate

If Trump truly believes he has power to change the Constitution by personal fief, he needs to read that document, or at least have it read to him! His power is limited. And if he tries to enforce an executive order limiting birth right conditions, he will need to be prepared for an avalanche of lawsuits and actions by the House of Representatives to throw that order into the gutter where it would belong.