President Trump speaks during an election rally in Murphysboro, Illinois on Oct. 27, 2018. (NICHOLAS KAMM/AFP/Getty Images)
President Trump's apparent plan to use an executive order to end birthright citizenship for babies born to noncitizens in the United States amounts to an unconstitutional power grab aimed at firing up the president's base, according to almost a dozen Bay Area law professors specializing in immigration and constitutional law.
In an interview Monday with reporters from the news outlet Axios, Trump said that instead of trying to change the Constitution through an act of Congress, he wants to strip birthright citizenship, something currently guaranteed by the 14th Amendment, from the nation's laws through an executive order. Trump made the assertion in response to a question from Axios reporter Jonathan Swan.
Eleven law professors contacted by KQED — at UC Berkeley, UC Hastings College of the Law, Stanford University, the University of San Francisco and Santa Clara University — all pushed back against the idea, which they said is bound to lead to challenges in federal court.
"The 14th Amendment is clear that all born in the United States are citizens of the United States," said Erwin Chemerinsky, dean of UC Berkeley Law. "The president has no authority to change this by executive order."
USF's Jacqueline Brown Scott, a supervising attorney at the school's Immigration and Deportation Defense Clinic, called the idea "most definitely unconstitutional" and "ludicrous."
Only a constitutional amendment or Supreme Court ruling could change the birthright citizenship clause, according to Santa Clara Law's Margaret Russell.
"This appears to be one more attempt for the president to expand executive power and dare anyone to stop him," Russell said.
Hastings professors Rory Little and Matthew Cole as well as USF's Bill Ong Hing emphasize that the 14th Amendment's language is straightforward.
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.
Several professors noted that Trump's interview with Axios, revealing the idea of an executive order on the issue, comes one week before voters head to the polls for the midterm election.
"This is a terrible move and designed to intimidate voters and energize Trump's base," said Bernadette Meyler, professor of law and co-associate dean for curriculum at Stanford.
Julie Nice, a USF law professor, said she is certain most constitutional law scholars view the proposal as "blatantly" unconstitutional.
"The pattern of the Trump administration is to make proposals that serve political purposes even if they are outside of clear constitutional bounds," Nice said.
Santa Clara Law's Pratheepan Gulasekaram agreed.
"The notion that the president, on his own unilateral decision making, can change the Constitution, is absolutely absurd," Gulasekaram said in an interview. "It very well might not be that the end goal here is to actually change it through executive order, but to fire up a base."
USF's Maya Manian called Trump's idea another unwarranted attack on immigrants' rights.
"We have a long history of attacks on birthright citizenship in the U.S., particularly during important election cycles," Manian said. "Scapegoating immigrants has been a hallmark of the Trump presidency."
Critics of birthright citizenship say it encourages immigrants who want to travel to the U.S. to have their babies here.
The birthright issue became part of Trump's hard-line policies on immigration as a presidential candidate.
Trump told Axios on HBO that he no longer believes a constitutional amendment is needed to change the policy. In response to a question from Swan, he said he had spoken to legal counsel about the idea of an executive order, and added vaguely, "It's in the process. It'll happen."
USF Law Professor Luke Boso says the move "appears to be a purely political tactic to fan the partisan flames in Trump's base."
"Paired with Trump's precision-like focus on the caravan of migrants moving towards the U.S. from Central America, Trump seems to be betting that racialized anti-immigrant rhetoric is a good strategy for motivating far-right voters."
One legal scholar who has been defending the president's plan is John Eastman, a law professor at Chapman University in Orange County.
Eastman says birthright citizenship is not mandated by the 14th Amendment and is not what the framers intended.
"You've got to be born on U.S. soil and you have to be subject to the jurisdiction of the United States, and by that they meant the complete jurisdiction, not mere temporary or partial or territorial jurisdiction," Eastman said.
UC Berkeley Law Professor John Yoo, a conservative like Eastman, disagreed.
In an article posted Oct. 25 in The American Mind, a publication of The Claremont Institute, Yoo wrote that Eastman's view of the 14th Amendment phrase "subject to the jurisdiction thereof" is mistaken.
"If the 14th Amendment’s drafters had wanted 'jurisdiction' to exclude children of aliens, they easily could have required citizenship only for those with no 'allegiance to a foreign power,'" Yoo wrote.
"Conservatives should reject Trump’s nativist siren song and reaffirm the law and policy of one of the Republican Party’s greatest achievements: The 14th Amendment," Yoo continued. "According to the best reading of its text, structure, and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is an American citizen."