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Gorsuch, Kavanaugh could kill Trump try to end birthright citizenship

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  • President Donald Trump plans to issue an executive order
    ending birthright citizenship,
    which grants automatic citizenship to children born in the US
    to non-citizen parents.
  • But according to Matthew Kolken, an immigration law expert,
    Trump’s own appointed Supreme Court justices, Neil Gorsuch and
    Brett Kavanaugh, would likely strike down such an order as
    unconstitutional.
  • Trump has tangled with the Supreme Court before on executive
    orders trying to restrict immigration and travel to the US,
    ultimately succeeding in having the court uphold a modified
    version of his travel ban.

President Donald Trump plans to issue an executive order ending birthright
citizenship
, which grants automatic citizenship to children
born in the US to non-citizen parents.

Trump said in an interview with Axios released on
Tuesday
that he would use his power as president so he
wouldn’t have to get consent from Congress.

But according to Matthew Kolken, an immigration lawyer and an
elected member of the American Immigration Lawyers Association’s
Board of Governors, Trump’s own appointed Supreme Court justices,
Neil Gorsuch and Brett Kavanaugh, would likely strike down such
an order as unconstitutional.

“There is ZERO chance either Gorsuch or Kavanaugh would find that
a phone and a pen can abrogate the 14th Amendment. 0.0 to be
exact,” Kolken tweeted.


Read more:

Trump plans to end birthright citizenship — here’s what the law
says about that

Both Kavanaugh and Gorsuch consider themselves strict
constructionists (also called “originalists”), or judges who rely
on a very narrow reading of the text of the US constitution and
other applicable laws.

Here’s the language in the 14th Amendment, ratified by Congress
in 1868 as part of the civil-rights amendments after the Civil
War, that relates to birthright citizenship:

“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.”

According to Kolken, Gorsuch and Kavanaugh would read this very
literally and not allow Trump to argue that unauthorized
immigrants weren’t subject to US jurisdiction, nor would they
shift their long-held beliefs to “appease Trump.”

“What Trump is seeking to do is enact a Constitutional amendment
through executive fiat through the phone and the pen, and you
can’t do that,” Kolken told Business Insider. “The process to
enact a Constitutional amendment is exceptionally difficult and
designed that way. In today’s political climate, there’s
virtually no chance we’d see a Constitutional amendment to strip
14th Amendment protections.”

Likely 9-0 loss for Trump


Supreme CourtWin
McNamee/Getty Images

Interestingly, the more liberal justices on the Supreme Court
have proven open to and supportive of new interpretations of the
Constitution and in some respects creating law through judicial
decision.

But according to Kolken, it’s even less likely that liberal
justices like Ruth Bader Ginsberg or Sonya Sotomayor would
support a new read on the Constitution to support Trump’s plan to
end birthright citizenship.

“I think it would be 9-0,” Kolken said, referring to a unanimous
Supreme Court opinion against Trump’s plan. “There wouldn’t even
be any wiggle room. In fact, there might be nine separate
opinions explaining why Trump couldn’t do that.”

Trump has tangled with the Supreme Court before on executive
orders trying to restrict immigration and travel to the US.

The high court upheld his controversial
travel ban in a 5-4 decision that split the
justices
along partisan lines. It was Trump’s third attempt
at restricting travel from certain majority-Muslim countries
after federal courts blocked the first two versions.

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