Days Before Election, Trump Leans Into Birthright Citizenship Pledge

WASHINGTON — President Trump lashed out at the top Republican in the House just six days before the midterm elections, elevating a fight within his own party over the president’s desire to end birthright citizenship.

Paul D. Ryan, the retiring House Speaker, said on Tuesday that the president “obviously” cannot do away with birthright citizenship with an executive order, as the president said on Tuesday and again on Wednesday that he would do. The guarantee of citizenship for those born in the United States is the long-accepted interpretation of the 14th Amendment to the Constitution.

With the election less than a week away, Mr. Trump not only introduced this new element to his immigration portfolio, he also moved to ignite a fight within his own party over an issue that does not have wide Republican support and that would immediately face legal challenges.

Most legal scholars say it is not possible for Mr. Trump to fulfill his promise to use an executive order to nullify that understanding of the 14th Amendment, which guarantees citizenship for those born in the United States.

In a Twitter post on Wednesday, Mr. Trump presented his own legal argument: “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof,’ ” he wrote, repeating what Vice President Mike Pence said in an interview with Politico on Tuesday.

The five words Mr. Trump cited come from this clause in the amendment: “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.”

In a later tweet Mr. Trump said, “This case will be settled by the United States Supreme Court!”

But there is little discord among legal scholars about the interpretation of the amendment. As The New York Times reported Tuesday:

The meaning of that clause is plain, said Peter J. Spiro, a law professor at Temple University. “The conventional understanding is absolutely clear that children born in the United States are citizens of the United States, with the insignificant exception of the children of diplomats,” he said.

A main purpose of the clause was to overrule Dred Scott, the shameful 1857 Supreme Court decision that said black slaves were property and not citizens. The decision said the Constitution barred Congress and the states from granting citizenship to the descendants of slaves, and it helped prompt the Civil War.

As a candidate, Mr. Trump raised the birthright proposal as part of his immigration platform. Some Republicans praised him on Tuesday for bringing it up again.

In one of his Twitter posts, Mr. Trump pointed to decades-old remarks by Harry Reid of Nevada, the former senator and Democratic majority leader, who once argued for eliminating the birthright citizenship policy — but later recanted). Fox News, the president’s favorite news media outlet, published an article about Mr. Reid’s position on Tuesday.

“If making it easy to be an illegal alien is not enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right?” Mr. Reid said in a speech on the Senate floor in September 1993. “Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides. And that is a lot of services.”

At the time, the United States was facing a wave of asylum seekers from Haiti and Cuba, and the country was still recovering from the shock of the first World Trade Center bombing. The men accused of carrying out the attack were foreigners, some in America legally, and others not. This turned the nation’s focus to the immigration system, and lawmakers worked to plug holes that could be exploited.

Mr. Reid’s remarks came as he tried to gain support for an immigration bill he had proposed that never passed.

In 2006, Mr. Reid recanted and called the proposed legislation “a low point of my legislative career, the low point of my governmental career.”

Later on Wednesday, Mr. Trump suggested Mr. Reid, who is undergoing treatment for pancreatic cancer, was not of a sane mind when he apologized for that legislative proposal.

Mr. Reid immediately responded.

“This president wants to destroy, not build, to stoke hatred instead of unify,” Mr. Reid said in a statement to the Washington Post. “He can tweet whatever he wants while he sits around watching TV, but he is profoundly wrong.”

Amending the 14th Amendment would be an uphill battle, requiring overwhelming majorities in both houses of Congress or the states.

“Beyond this, the president’s proposal suffers from another infirmity — it exceeds the scope of his authority,” a pair of lawyers on opposite ends of the political spectrum wrote in an opinion piece published Tuesday in The Washington Post.

The lawyers, George T. Conway III, who is married to one of the president’s top advisers, Kellyanne Conway, and Neal Katyal, the former acting solicitor general in the Obama administration, wrote, “Our Constitution could not be clearer that it is Congress, not the president, who is in the driver’s seat when it comes to immigration.”

The president on Wednesday also tweeted about the caravan of migrants making their way through Central America toward the United States, repeating without evidence that dangerous people were among them.

And on Monday, the administration announced that more than 5,000 active duty military troops will head to the southern border by the end of the week to strengthen security. Critics have accused the president of using the military as a political prop because of the timing before the election and the fact that the migrants are still weeks away from the United States border.

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