Texas Leadership at a Loss to Challenge Trump's Threat to Birthright Citizenship

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Another day, another promise from President Donald Trump to his base ahead of next week's midterm elections. Tuesday, rather than issuing more wisdom about the caravan of Central American migrants that's still hundreds of miles from the U.S. border, Trump declared that he's considering ending birthright citizenship with an executive order. In saying so, he apparently made several of the most powerful men in Texas politics forget their legal educations.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said during an interview with the news website Axios for an upcoming HBO special. "We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits ... It's ridiculous. It's ridiculous. And it has to end."

In fact, about 30 countries have birthright citizenship, among them Mexico and Canada. Trump said he plans to end the longstanding policy himself.

"It's in the process. It'll happen ... with an executive order," he said.

For reference, here's the first sentence of the 14th Amendment to the U.S. Constitution, ratified in 1868: "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."

Trump's claim that he can simply end a policy that was enshrined in the Constitution 150 years ago is simply incorrect, says Dallas appellate lawyer Chad Ruback.

"Trump cannot trump the Constitution. The 14th Amendment unambiguously provides that everyone born in the U.S. is a U.S. citizen," Ruback says. "The president can't simply decree by executive order that a portion of the Constitution should be disregarded. It doesn't work that way."

House Speaker Paul Ryan was equally unequivocal Tuesday afternoon.

“You cannot end birthright citizenship with an executive order," Ryan told Kentucky talk radio station WVLK. "As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."

The Constitutional clarity on the issue was not enough to stop Texas Gov. Greg Abbott, U.S. Sen. Ted Cruz and Texas Attorney General Ken Paxton from tap dancing around the idea of the president having a line-item veto when it comes to the Constitution. 

Texas Gov. Greg AbbottEXPAND
Texas Gov. Greg Abbott
Gage Skidmore

"I saw the headline, haven't seen exactly what he said or the results," Abbott told reporters in Georgetown. "All I know is something like that would require keen legal analysis. As you know I'm a judge. As a former judge, I would take a judicial aspect toward it and read all the law on it. Haven't had a chance to read the law on it. So for me, it's premature to cast any type of judgment on it."

The 14th Amendment is less than 500 words long. The relevant portion — the first sentence — is 28 words long. 
Cruz was similarly equivocal when asked about Trump's statements after a campaign event in Uvalde.

"I would need to examine the legal arguments behind an executive order, and I haven't seen those yet," Cruz said, after telling reporters that "ending birthright citizenship makes a lot of sense."

Cruz's remarks Tuesday stand in direct opposition to what he said about birthright citizenship in 2011 during his first U.S. Senate campaign. At the time, Cruz said the Constitution was clear on the subject.

"The 14th Amendment provides for birthright citizenship. I’ve looked at the legal arguments against it, and I will tell you, as a Supreme Court litigator, those arguments are not very good," Cruz said on the Duke Machado Show. "As much as someone may dislike the policy of birthright citizenship, it’s in the U.S. Constitution. And I don’t like it when federal judges set aside the Constitution because their policy preferences are different. And so my view, I think it’s a mistake for conservatives to be focusing on trying to fight what the Constitution says on birthright citizenship."

During an appearance on Fox News, Texas Attorney General Ken Paxton appeared giddy at the legal fight that will ensue if Trump issues his fiat. 

"I'm glad that the president's taking a look at this and considering this option," Paxton said. "I haven't actually researched this, but I would guess this would be a very interesting question. Ultimately, my guess would be we'll be sitting in front of the Supreme Court answering this on a close call. I have no doubt that this will go all the way up to the Supreme Court and there will be lots of discussions. I don't know that we've had a case like this maybe ever, but at least not in a very long time. It will be interesting to see what this new Supreme Court does."

Justin Nelson, the attorney and adjunct University of Texas law school professor challenging Paxton's re-election next week, mocked his opponent's comments about Trump's plan.

"The Constitution can't be amended by an executive order. If Paxton were a student in my constitutional law class, I'd give him an F for this remark. Even Paul Ryan agrees that Paxton is wrong," Nelson said. "Clearly Paxton doesn't understand the law of the Constitution. It's this kind of 'legal wizardry' that gets you investigated for bribery and indicted on three felony counts."

Paxton is awaiting trial on felony securities fraud charges.

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