Trump's own Supreme Court appointees could strike down his attempt to end birthright citizenship
- 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
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.