Tuesday, January 31, 2023

Salter: If 14th Amendment Can be Nullified by Executive Order, So Can the First or Second

One day after most of us engaged in the single most important duty of American citizenship – exercising the precious right to vote – can we please take a deep breath as a country and stop the national hysteria over whether this or any U.S. president can nullify the 14th Amendment guarantee of birthright citizenship by executive order?

While there are those who will vigorously debate the question from both perspectives – the president can or the president can’t – the consensus among legal scholars other than those who are hard to the right is that neither President Donald Trump nor any other president possesses that power under the Constitution.

In other words, Republican President Donald Trump can no more nullify the 14th Amendment by executive order than could Democrat President Barack Obama nullify the Second Amendment by the same process.

Why? Because the Constitution prescribes the methods for changing the Constitution in Article 5 and they both are extraordinarily difficult to achieve.

Our Constitution does not establish a U.S. president as a dictator, but as a constitutional officer leading the executive branch of government who is required to share power with Congress (the legislative branch) and the U.S. Supreme Court (the judicial branch).
While Trump’s birthright citizenship rhetoric might have appealed to his base in the waning days of the midterm elections, it ignored the actual dictates of the Constitution altogether.

First, the Constitution can be amended by a two-thirds vote of both houses of Congress followed by a ratification vote by three-fourths of the state legislatures or by conventions in three-fourths of the 38 states required to ratify an amendment. This is the only method ever implemented to change the Constitution. By this method, the 18th Amendment declaring Prohibition was repealed by passage of the 21st Amendment.

Second, the Constitution can be amended by a Constitutional Convention called by two-thirds of the state legislatures. If the convention proposes amendments, they must then be ratified by three-fourths of state legislatures or conventions in three-fourths of the states.
It would stand to reason then that while congressional scholars estimate some 11,699 attempts to amend or repeal constitutional amendments since the ratification of the Bill of Rights in 1789, the 18th Amendment is the only one ever to be repealed.

While most of us are familiar with the Bill of Rights – the first ten amendments to the U.S. Constitution, most people’s eyes glaze over when asked the specifics of most of the rest of the total 27 amendments. But it’s clear that birthright citizenship was no accident and was not something that our ancestors stumbled upon ill-advisedly.

The 14th Amendment, ratified in 1868, reads: “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.” (Mississippi first rejected the amendment, but later ratified it in 1870 – some 18 months late to the party like most states in the old Confederacy.)

Part of the so-called “Reconstruction Amendments” in the wake of the South’s defeat in the Civil War, the 14th Amendment was sandwiched between the 13th Amendment that abolished slavery and the 15th Amendment, which prohibited federal and state governments from denying a citizen the right to vote based on “race, color, or previous condition of servitude.”

In historical context, birthright citizenship was extended to the children of African Americans brought to this country in chains to be sold into bondage. The notion that birthright citizenship was wrong then or is wrong now is one that flies in the face of the most basic of civil rights.

Illegal immigration is an issue in which neither Republicans nor Democrats can claim much moral authority. Both parties kicked the can down the road on this issue and primarily for the sake of winning elections or having a labor force to do jobs able-bodied Americans declined to accept.

As a country, we can enforce existing immigration laws without attacking the concept of birthright citizenship. At least, we should.

Sid Salter--studio headshotSid Salter is a syndicated columnist. Contact him sidsalter@sidsalter.com.*Editor’s Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect those of other staff and/or contributors of HottyToddy.com. For questions, comments or to submit your own guest column, email hottytoddynews@gmail.com.