Trump Says He's Gonna End Birthright Citizenship Via Executive Action, Should He?

The Presidential abuse of executive orders to circumvent Constitutional law has devolved into a game of political one-upmanship.  Leaders from both major parties have “normalized” this shortcut to evade checks and balances as they were originally intended, which have had outstanding historical success when adhered to properly.

Amending our Constitution is no small matter.  Doing so requires a proposal from a two-thirds majority in both the House and Senate, followed by ratification from three-quarters of the states - an appropriately high bar to reach.  This explains why there have been only 27 amendments ratified in our nation’s 247-year history.  Among those 27, only 15 have happened since 1795, as the first 12 mostly cleaned up shortcomings in the original document during the years shortly after its inception.

While executive orders are loosely permitted in the Constitution, the Supreme Court has held that they must be supported by the Constitution as well.  They must be rooted in existing statutory law, and not create new laws themselves.  This baseline mostly held strong through the 19th century but expanded dramatically since the onset of the First and Second World Wars. 

Of the 15,773 executive orders submitted through 2022, only 1,182 (7.5%) came from our first 25 presidents (through McKinley in 1901), while 14,591 (92.5%) were from the past 21 presidents.  Attempts at pushing the envelope, to get around the legislative process and force-feed personal agendas, have expanded simultaneously.

Recently, former President Trump stated that he’d use executive action if re-elected to end what he calls “birth tourism”, when an illegal immigrant “comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits”.  He bemoans that “hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegitimately and illegally obtain US citizenship for the child, often to later exploit chain migration to jump the line and get green cards for themselves and their family members”.  

Conceptually, his argument is sound; asylum abuse is well documented and often violates our laws regardless if one thinks it should be acceptable.  While a foreigner giving birth in this country is not a crime in itself, many are using it as a tool to circumvent immigration laws for their families (they do the same in Canada). 

The overwhelming numbers he states are statistically sound as well, according to the Center for Immigration Studies which shows roughly 33,000 “birth tourists” each year, easily adding up to the numbers he describes.   Putting aside all other aspects of unlawful migration, this influx alone of that many babies (plus families) detracts untold amounts from the social services required by our impoverished citizens, and those numbers grow each day.

Predictably, however, Trump’s choice of application is weak.  There is a saying, “If you don’t learn from your mistakes, there’s no sense making them”.  But he often seems to let his ego get in the way of that concept, failing to recognize the limitations of executive action in the long term. 

Many of his prior orders have already been reversed since he left office, as he himself did to orders which preceded him.  The legitimacy of Trump’s new proposal has been called into question as well, since he promised the same thing when campaigning in 2015 and throughout his presidency, yet failed to deliver.

Like many presidents, he also fails to grasp that such heavy-handed techniques divide the public in irreparable ways.  Instituting seismic changes to American life without legislative process ensures rebellion from half the population, who rightly take turns questioning the point of our Revolution when our elected President acts like a king.

Democrat FDR was one of the earliest presidents to push the limits of his powers.  Among his record, 3,728 orders were those which confiscated privately held gold for the Federal Reserve (1933), and which relocated Japanese-Americans to internment camps (1942).  His Democrat successor Harry Truman ordered a federal takeover of private steel manufacturing (1952), which was overturned by the courts as unconstitutional.

Republican Gerald Ford issued a complete pardon for Richard Nixon (1974), and Republican George W. Bush ordered restrictions to access the records of former presidents (2001).  Bush’s order was reversed by a new order from Democrat Barack Obama (2009), whose own order to close Guantanamo Bay (2009) was later reversed by Republican Donald Trump (2018).  Trump’s order for the wall at the Mexican border (2017) was then reversed while still in progress by Democrat Joe Biden (2021).

Both parties have taken an attitude of ‘well they did it, so we should do it too’.  This has permeated our politics like kindergartners arguing over a toy.  When each administration justifies inappropriately upping the ante as a response to the other side having done so, people on both sides lose their freedoms as those in power incrementally expand their control.  Whether we tend to support a policy conceptually, our people have to learn to avoid using whether or not they agree with a proposal as a basis for cheating the laws.  It's turning politics into a see-saw, even more than what has been happening organically.

Many executive orders are obvious abuses of power (FDR, Truman), and many others are subjected to flip-flops with each change in the administrative party.  None of them actually qualify as laws, which must be legislated by Congress.

Unfortunately, many in the public don’t view these attempts from a perspective of Constitutional legality, but rather from whether they personally support a particular initiative.  Whether we agree with a proposal or not shouldn’t be the criteria for cheating our laws.  The alternative, sooner or later, becomes anarchy.