WASHINGTON — President Donald Trump has bewildered legal scholars with his claim that he can abolish birthright citizenship with an executive order. No, they say, he can’t.
Trump also went further to assert that The United States is the only country that automatically grants citizenship to anyone born in the country regardless of the status of the parents. Many do.
The U.S. is among about 30 countries where citizenship is granted at birth — the principle of jus soli or “right of the soil” — is applied, according to the World Atlas and other sources.
Most are in the Americas. Canada and Mexico are among them. Most other countries confer citizenship based on that of at least one parent — jus sanguinis, or “right of blood” — or have a modified form of birthright citizenship that may restrict automatic citizenship to children of parents who are on their territory legally.
TRUMP: “It was always told to me that you needed a constitutional amendment. Guess what? You don’t. … Well, you can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”
THE FACTS: Scholars widely pan the idea that Trump could unilaterally change the rules on who is a citizen. It’s highly questionable whether an act of Congress could later it, either, though it is conceivable that legislators could change the rules regarding children born in the U.S. but whose parents reside illegally in the country.
Peter Schuck is perhaps the most prominent advocate of the idea that birthright citizenship is not conveyed by the Constitution to children of parents who are living illegally in the U.S. Even he says “Trump clearly cannot act by” executive order.
“I feel confident that no competent lawyer would advise him otherwise,” he said by email Tuesday. “This is just pre-election politics and misrepresentation and should be sharply criticized as such.”
Schuck, of Yale, and colleague Rogers Smith of the University of Pennsylvania have argued since the mid-1980s that Congress can set the rules for providing citizenship to U.S.-born children of parents who came illegally.