Watch this case. The President of the United States cannot does amend the Constitution, including clause 3 of our Fourteenth Amendment. There's a provision in the Constitution for Constitutional amendments, which are adopted sparingly. From The Washington Post:
Trump asks Supreme Court to allow birthright citizenship ban in some states
Lower-court judges have blocked Trump’s initiative nationwide, saying it violates the citizenship clause of the 14th Amendment.
In its request to the Supreme Court, the administration asked the justices to limit the nationwide orders to the individuals or states involved in the litigation while those cases make their way through the court system, or to at least allow the relevant federal agencies to begin developing plans and issuing public guidance for banning birthright citizenship if Trump’s effort eventually passes legal muster.
Nationwide court orders “prohibit a Day 1 Executive Order from being enforced anywhere in the country … [and] compromise the Executive Branch’s ability to carry out its functions,” acting solicitor general Sarah M. Harris told the justices.
If the Trump administration were successful in persuading the Supreme Court to limit the injunctions to states participating in the litigation, it could allow the administration to begin denying automatic citizenship to the children born in 28 states and other U.S. territories.
Such a scenario would be unmanageable, said Amanda Frost, an immigration law professor at the University of Virginia who has written extensively about the legal questions around nationwide injunctions. Migrants might feel compelled to travel between states to give birth, she said, and parents or interest groups could file hundreds or thousands of legal challenges on behalf of children not covered by the existing orders.
“It would create chaos to have inconsistent rules and overwhelm the courts — it’s not administrable,” Frost said.
The administration’s filing noted that nationwide injunctions have halted many of Trump’s efforts to dramatically shrink the size of the federal workforce, halt spending and dismantle agencies. Judges issued more orders blocking Trump’s executive actions in February, the filing said, than through the first three years of the Biden administration — a data point probably related to the volume of Trump’s directives and the fact that many seek to dramatically change the way government works.
“This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched,” Harris said. “Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.”
Presidents from both parties — and several Supreme Court justices — have raised concerns about the power of a single judge to block an administration’s initiative nationwide. During President Joe Biden’s tenure, judges halted his administration’s mask mandate for air travelers, his student loan forgiveness plan and a coronavirus vaccine mandate for certain workers.
Trump’s order to end birthright citizenship, is facing eight separate lawsuits across the country. In addition to the three nationwide injunctions, in cases in Maryland, Massachusetts and Washington, a federal judge in a New Hampshire issued an injunction in a case brought by the American Civil Liberties Union, though the scope of that injunction is uncertain. A court hearing in that lawsuit is scheduled for Friday.
Some legal analysts questioned why the administration was seeking to limit the injunctions rather than ask the Supreme Court to fast-track a decision on the underlying constitutional questions involved in Trump’s order. New Jersey Attorney General Matthew J. Platkin (D), who is leading the Massachusetts lawsuit, said he expected the Trump administration’s request to be denied.
“Every court to consider President Trump’s effort to end birthright citizenship by Executive Order has found it is flagrantly unconstitutional, and all three appellate courts to review DOJ’s emergency applications have rejected them,” Platkin said in a statement. “We expect that the Supreme Court will reject it too. The Trump Administration offers no good reason to upend centuries of constitutional law recognizing birthright citizenship through this rushed, emergency petition.”
The birthright citizenship cases involve the 14th Amendment, adopted after the Civil War in 1868 to establish citizenship for freed Black Americans, as well as “all people born or naturalized in the United States, and subject to the jurisdiction thereof.” The citizenship clause reversed the Supreme Court’s decision in Dred Scott v. Sandford, which had denied citizenship to Black Americans.
Trump and his allies say they have the authority to ban birthright citizenship because unauthorized immigrants are in the country illegally and, therefore, are not “subject to the jurisdiction” of the United States government. Since the 1990s, some restrictionist groups and Republican lawmakers have pressed to ban birthright citizenship, which they consider an incentive for people to enter the country illegally.
Most legal scholars, however, have rejected that analysis because noncitizens can be arrested and charged with crimes, put in jail or deported. There is also wide agreement that the argument conflicts with more than a century of Supreme Court precedent that protects citizenship for most everyone born on U.S. soil, except for the children of foreign diplomats.
“The president’s order is radically cruel and unconstitutional, and it’s disappointing that the Department of Justice continues to try to enforce it against babies being born across the country,” said Cody Wofsy, the lead attorney in the ACLU’s lawsuit. “We and the other organizations and entities bringing these suits will keep fighting until this executive order is finally laid to rest.”
The Supreme Court upheld the right to birthright citizenship in 1898when it ruled for Wong Kim Ark, who was born in San Francisco to parents of Chinese descent. The court said he was a U.S. citizen after he was denied reentry to the United States after a trip abroad.
In its filing Thursday, the Trump administration said that individual states lack legal grounds to assert citizenship rights on behalf of individuals residing in those states and that the lower-court orders have made it more difficult for Trump to set immigration policy for the nation.
In the Washington state case, Judge John C. Coughenour of the U.S. District Court in Seattle said birthright citizenship “is a fundamental right, a constitutional right,” and criticized Trump for trampling on the Constitution to pursue “political or personal gain.”
Coughenour, who was appointed by President Ronald Reagan, said the Trump administration must pursue a constitutional amendment if it wants to change the 14th Amendment — a step that would require ratification from a large majority of Congress and the states.
“The fact that the government cloaked what is in effect a constitutional amendment under the guise of an executive order is equally unconstitutional,” Coughenour said during a hearing in which he issued the nationwide injunction. “The Constitution is not something the government can play policy games with.”
His ruling is on appeal to the U.S. Court of Appeals for the 9th Circuit and expected to be scheduled for argument in June.
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