President Trump, who has been campaigning intensely against immigration ahead of next week’s elections, said in a television interview that he is “in the process” of preparing an executive order to end the right to citizenship for children born in the United States to parents who are here illegally.
“It’ll happen,” he said in an interview with Axios scheduled to air on HBO this weekend. The news site released a portion of the interview Tuesday morning.
Trump did not lay out specifics, including a timeline, making his plans uncertain. In the past, he has promised to take up some issues in short order and then failed to do so. At other times, his public comments foretell actual policy plans.
Trump’s words have been especially unreliable in the run-up to the midterm elections, promising, for example, that Congress would approve a new tax cut before next week’s election, even though the House and Senate are not in session.
Two people close to the administration who spoke anonymously said Tuesday that the citizenship policy had been in discussion for weeks. The idea, which Trump and many of his advisors believe could help boost conservative turnout in the final days before the midterm election, has been driven by Stephen Miller, Trump’s most hard-line anti-immigration advisor, both people said.
Following the murders at a Pittsburgh synagogue on Saturday and a spate of attempted mail bombs targeting Democratic leaders and other prominent Trump critics, White House aides debated whether to put the policy on hold until after the election, one person said. But the administration gave the proposed executive order a “green light” during a Monday afternoon staff meeting, according to one of the two people who spoke about the discussions, and whose account was backed up by the second.
Trump and many of his advisors believe the attention they have brought to a migrant caravan heading toward the U.S.-Mexico border has helped motivate his base voters and think that proposing the birthright order now would increase the momentum.
“Now you’re in a position where if you want to fire up the base, boom! That’s one way to do it,” said the person.
Others have cautioned against starting a divisive constitutional fight while the nation is still shaken from the recent acts of political and religious hate.
In issuing any such order, however, Trump would be wading into a contentious legal dispute. Most legal scholars have said that eliminating birthright citizenship would require a constitutional amendment. Even those who have argued that Congress could act without changing the Constitution haven’t said a president could do so by fiat.
The Constitution’s 14th Amendment, adopted in 1868, states that “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.”
That language has been widely interpreted to guarantee the right to citizenship for those born on American soil. Trump now claims otherwise.
“It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said in the interview.
"You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order,” Trump said, without specifying who the “they” referred to.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, accused Trump of trying to “sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”
“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” he said.
The Republican House leader, Speaker Paul D. Ryan of Wisconsin, agreed. "You cannot end birthright citizenship with an executive order," he told radio station WVLK in Lexington, Ky.
Vice President Mike Pence, speaking Tuesday at an event sponsored by Politico, amplified the president’s argument, calling birthright citizenship one of many “loopholes” that has led to a “crisis on the border.”
The Trump administration said last week that a combined 521,090 people were either stopped at the border or deemed inadmissible after arriving at a legal port of entry in the fiscal year that ended Sept. 30. That was a jump of more than 100,000 since the prior year, but below the totals in two of the last five years and lower than the levels in most years of recent decades.
It’s unclear how far the administration has gotten in crafting actual language or whether the Justice Department's Office of Legal Counsel has signed off, a legal requirement for a strategy that is certain to drag out in the courts. Donald McGahn, Trump’s White House counsel, recently left the administration, making the challenge even more uncertain.
Administration officials would not comment. Many were hoping to keep the day’s focus on Trump’s trip to Pittsburgh on Tuesday. The trip was intended to console the community where 11 Jewish people were killed in a synagogue on Saturday.
Robert Bowers, the accused gunman, had echoed some of Trump’s hard-line immigration views and used social media to attack HIAS, a group founded by Jews that helps resettle refugees.
Trump condemned the attack, but he returned quickly to his anti-immigrant rhetoric, even using the term “invasion” — the same word allegedly used by Bowers in his social media posts — to describe a migrant caravan that is about 900 miles from the southern U.S. border.
Trump has long seen political value in hard-line immigration proposals. He differentiated himself from a crowded Republican primary field by promising in 2015 to “end birthright citizenship ... the biggest magnet for illegal immigration.”
The strong position forced his opponents to either adopt Trump’s views, and look like they were copying him, or confront him and defend against his accusations that they were weak on immigration — a defining issue among Republican voters.
Trump’s tactics hardened the Republican Party’s stance and helped him secure the nomination. Republicans had traditionally advocated for immigration, but started splitting on the issue in the 1990s. In 1996, for example, the party platform endorsed an end to birthright citizenship, but the Republican presidential nominee, Sen. Bob Dole, renounced the idea.
Immigration groups who press for restricting legal immigration, and were for a long time on the fringes of the debate, have rejoiced under Trump.
“This is a turning point. This issue is going to be front and center and it’s not going to go away,” said activist Ted Hilton, who has advocated ending birthright citizenship for more than 30 years.
The San Diego native launched a California ballot initiative in 2009 targeting children born to people who are in the country illegally. It was put on hold after anti-illegal-immigration activists failed to garner enough signatures to make the California ballot the following year.
Hilton said he believes the Supreme Court will ultimately rule on the issue, the strategy he has long advocated.
Roy Beck, president of NumbersUSA, said taking away the automatic right to citizenship helps groups such as his in other immigration fights as well, because they can better counter advocates for immigrants’ rights, who argue that families are being torn apart when parents of children born in the United States are deported.
“There’s never been anybody in the White House that’s really pushed it,” until Trump, Beck said.
Liberal groups condemned Trump’s proposal. Heidi Hess, co-director of the progressive group CREDO Action, called it "another unconstitutional power-grab from a man who is desperate to whip Republicans into an anti-immigrant frenzy in advance of the midterm elections."
Polls this year have shown immigration to be a strong motivator for Republican voters, although not for others.
A recent Kaiser Family Foundation poll, for example, found that more Republican voters, 25%, chose immigration as the most important issue in deciding who to vote for in next week’s elections. The issue ranked just ahead of the economy and jobs for Republican voters.
But the poll also showed how the issue moves Trump’s core supporters more than the rest of the public. Among Democrats, only 9% ranked immigration as the top issue while among independents, only 15% said that. Those two groups were far more interested in healthcare.
House Democratic Leader Nancy Pelosi of San Francisco argued that Trump is using the immigration issue as a political ploy to distract from healthcare, which Democrats are emphasizing.
“President Trump’s new claim he can unilaterally end the Constitution’s guarantee of citizenship shows Republicans’ spiraling desperation to distract from their assault on Medicare, Medicaid and people with preexisting conditions,” she said.
Los Angeles Times staff writer Cindy Carcamo in Santa Ana contributed to this report.