President Trump’s ability to get rid of birthright citizenship by executive order

If Dean Eastman, Senator Jacob Howard, and other proponents of the “jurisdictional allegiance” theory of the original meaning of the citizenship clause of the 14th Amendment are correct, then President Trump does have the power to change the practice by executive order.

The President of the United States is the head of the executive branch of the federal government. In this capacity, the president may direct executive agencies to act in accordance with what he believes to be the original meaning of a statute, so long as that meaning has not been explicitly refuted by the judiciary. The president therefore has the discretion to order his executive agencies to deny passports (State Department), refuse to issue Social Security numbers (Social Security Administration), or deport persons (Justice Department, Homeland Security Department), provided these actions do not otherwise violate federal law or the constitutional rights of affected persons.

The president’s power to do these things does not exist in a vacuum. This power is contingent on an ambiguous statute, the meaning of which, on the specific issue at hand, has not been clarified by the Judiciary, or by Congress through legislation. As noted above, case law from the United States Supreme Court does not clear up whether both the children of legal and illegal alien migrants are to be conferred birthright citizenship. The rule for the former is clear, the law regarding the latter is not.