Trump takes aim at birthright citizenship concept with proposed executive order

WASHINGTON (KGO) -- If the President follows through with an Executive Order to derail the concept of birthright, legal experts and advocates in the immigrant community say they expect the 14th Amendment will prevail. Critics say the President is making a blatant play to win support from his base ahead of the midterm elections.

Priya Murthy is policy program director of SIREN, or Services, Immigrant Rights and Education Network, in San Jose.

"This is nothing short of a political move that Trump is trying to do to basically gin up the white nationalists who live in this country," she said.

She believes the President's strategy might backfire and prompt immigrant voters to turn out in greater numbers next Tuesday to vote against his party and candidates.

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Santa Clara University law professor Pratheepan Gulasekaram is an expert on Constitutional and immigration law. He expects any Presidential executive order to get challenged and to get struck down.

"There's no doubt that when this gets in front of a federal trial court, it will immediately be declared unconstitutional," he said. "It will go to a federal appeals court, and they will very quickly also find this unconstitutional."

The wild card is what the Supreme Court might do with its conservative majority after Justices Neil Gorsuch and Brett Kavanaugh were nominated by President Trump and then confirmed.

At a political gathering in San Francisco, the state's Republican and Democratic candidates for Governor weighed in on the issue.

"I think the President's trying to force a debate on that," said GOP candidiate John Cox. "I think it should be decided by the people. Not the Executive Order."

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Democratic candidate Gavin Newsom said, "We have a President that's sending 5,000 troops to the border with a caravan that's a thousand miles away that's moving 20 miles each day. You do the math."

The concept of birthright was the focus of a landmark Supreme Court decision 120 years ago, involving a young Chinese cook from San Francisco. His name was Wong Kim Ark, and the Supreme Court ruled that because he was born in San Francisco, he was a citizen under the 14th Amendment, even though his parents were non-citizens under restrictive laws at the time.

Law professor Gulasekaram said, "So this is a Chinese man born in San Francisco, and his parents at that time were... they were immigrants to the United States underneath treaties the United States had with China. His parents were unable to naturalize as citizens of the United States because at that time, the United States had explicit racial bars on who could naturalize as citizens. And his claim was that despite whatever problems his parents might have or restrictions, I was born in the United States and the 14th Amendment protects my citizenship as a birthright citizen. That case came before the Supreme Court. The United States opposed him claiming citizenship, and the court was very clear that the 14th Amendment's rule is a simple one, and it means that anybody born in the territory of the United States, regardless of what their parents' status is, regardless of any other concerns you might have, they are citizens of the United States. That is the rule of the 14th Amendment. That is the interpretation that the Supreme Court has consistently stood by for the last 120 years."