On his first day in office, President Donald Trump issued a flurry of executive orders intended to curb both legal and illegal immigration. In one of his most controversial orders, Trump called for the revision of the constitutionally recognized right of birthright citizenship to exclude the children of people in the U.S. unlawfully or on a legal temporary basis. The order, which is viewed by many as legally dubious, was immediately targeted by numerous lawsuits, starting off a protracted fight that will likely end at the Supreme Court. Within days, a federal judge temporarily blocked the order, calling it “blatantly unconstitutional.” I spoke with Gerard Magliocca, a professor at Indiana University’s Robert H. McKinney School of Law, about the president’s chances in court and whether a push for a constitutional amendment could be next on the horizon.

Trump’s executive order looks to redefine the constitutional right of birthright citizenship to exclude the children of noncitizens. In your opinion, does he have any legal ground to stand on?
No. Now, there’s really two reasons for that. The first is that this is an executive order, not an act of Congress, right? And so the first question is, does the president on his own have the power to redefine citizenship? And to do that, he would have to be able to point to some law enacted by Congress or something in the Constitution specifically that says the president can do this — and there is nothing like that. The Supreme Court has held, in some cases during the Biden administration when President Biden tried to do certain things on his own through executive orders like student-debt relief or certain kinds of COVID policies, that there was no statute that gave him the power to do these things.

Now, the second problem is even if you thought there was some law that supported the executive order in an act of Congress, it’s unconstitutional. The reason it’s unconstitutional is that when the 14th Amendment was ratified, there were only a couple of very narrow exceptions to the rule that everyone born here is a citizen and none of those exceptions have anything to do with the fact that your parents may or may not have done something. The example that the executive order cites is to say people who have come here illegally are invaders. And it is true that back when the 14th Amendment was ratified, if you had an invading army — Canada invades Maine and then children are born in Maine under Canadian occupation — those children would not be considered birth citizens because, in effect, that part of the country........

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