Is the Fourteenth Amendment in peril?

November 8, 2018

The President recently announced that he plans to sign an executive order that would remove the right to citizenship for babies of non-citizens born in the United States, thereby nullifying the Fourteenth Amendment

USC Constitutional experts from both a legal and historical perspective weigh in on the legality and possibility of such an executive order. 

Contact: Jeremy Pepper, (213) 740-8606 or pepper@usc.edu

Zero chance the courts will permit

“It is long settled that the first requirement – birth on U.S. soil – is met by birth in any U.S. state or the nation’s capital.

“There is zero chance that the courts will permit Trump to end birthright citizenship through an executive order. The Constitution expressly vests the naturalization power in Congress, not the President. And the Supreme Court has found that it is Congress, not the president, whom the Constitution empowers to regulate immigration.

“Of course, Trump could try to change the Fourteenth Amendment. But the Founders intentionally made that difficult. It takes a super majority that does not now exist and will not come to exist absent a massive shift in public opinion.”

Erman wrote more on the subject, and how the President does not have the power to end birthright citizenship here.

Sam Erman is an Associate Professor of Law at USC Gould School of Law. He is an expert in constitutional law, legal history, the Fourteenth Amendment, and the Supreme Court. Erman clerked for Justice John Paul Stevens and Justice Anthony M. Kennedy of the United States Supreme Court.

Contact: Erman can be reached at (734) 717-2642 or serman@law.usc.edu; or contact Gilien Silsby at (213) 740-9690 or gsilsby@law.usc.edu

Fourteenth Amendment is a gift

“The Fourteenth Amendment was created to ensure that black people were citizens, and its citizenship provisions have always proven most useful to people on the margins, such as former slaves and the Chinese who were facing extraordinary discrimination at the end of the 19th century, a time when Congress didn’t want them to come into the U.S.

“The Fourteenth Amendment is a gift. For me, it’s moving that the 14th Amendment works that way. It says that if you are here, and you have a child here, your child is one of us.

“Is it conceivable that the president and his administration could try to end birthright citizenship by executive action? It would be really, really surprising. The president could write an executive order, but the administration will certainly get sued.”

Perl-Rosenthal recently conducted a Q&A with the USC Dornsife College, which can be found here.

Nathan Perl-Rosenthal is an Associate Professor of History and Spatial Sciences at the USC Dornsife College of Letters, Arts and Sciences. Perl-Rosenthal is an historian of the eighteenth- and early nineteenth-century Atlantic world, focusing on political and cultural history with particular attention to the transnational influences that shaped modern national politics.

Contact: Perl-Rosenthal can be reached at (213) 740-1670 or perlrose@usc.edu