Hana Callaghan is the director of the Government Ethics Program at the Markkula Center for Applied Ethics. Views are her own.
Recently, President Trump not only promised that he would overturn the concept of birthright citizenship, but he also assured Americans that he has the power to personally do so by executive order. There are many who believe that by making this declaration, the president is in essence making a campaign promise on the eve of the 2018 mid-term elections.
Our political process is based on the ethical ideal of creating an informed electorate. It follows then that ethical campaign promises are those that are truthful—not deceptive. To be ethical, campaign promises must be realistic, capable of being accomplished, and made with a good faith intent to keep the promise once in office.
Is Trump’s declaration a campaign promise, and if so does it follow the dictates of ethical campaigning? Even though the president is not actually on the ballot, he knows that the midterms will be a referendum on his administration and the policies enacted over the last two years. If the House and Senate change color to blue, depending on the outcome of the special counsel’s investigation after the mid-terms, Trump’s very status as president may be at risk. Therefore the president is in full campaign mode whether he is on the ballot or not.
The president knows that illegal immigration is a subject of great concern to his supporters. By making a promise to personally eliminate birthright citizenship, he is appealing to his base, trying to rally them to go to the polls on November 6. However, regardless of divergent views on immigration reform, many on both sides of the aisle disagree with the president’s representation that he has the authority to unilaterally change U.S. law on matters of citizenship.
The concept of birthright citizenship is found in the 14th Amendment to the U.S. Constitution, which provides, “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.” There are those who argue that the term, “subject to the jurisdiction of the United States,” means that the citizenship clause of the 14th Amendment does not apply to those who are here illegally. (Although none of those who espouse this school of thought have argued that undocumented immigrants are not subject to U.S. jurisdiction if they break the law while on U.S. soil.) There are others who claim that the jurisdiction language refers to the children of foreign diplomats who are not subject to U.S. law. While there is Supreme Court dicta which provides support for the proposition that citizenship is guaranteed for anyone born in the U.S., the Supreme Court has never actually addressed the specific question concerning the children of undocumented parents.
All that being said, there is another principle at play. For argument’s sake, even in the unlikely event the Supreme Court were to hold that the 14th Amendment does not require birthright citizenship for the children of undocumented parents, the president does not have the power to enact immigration legislation by executive fiat. Article I, Section 8, clause 4 of the Constitution grants Congress the sole power to enact legislation regarding who shall be able to become a citizen. Pursuant to this constitutional authority, Congress has enacted 8 USC 1401 which provides that a person born in the United States and subject to the jurisdiction thereof is a citizen of the United States.
The president does not have the power to override either the Constitution or federal law by executive order. Under the Constitution, the president has a duty to, “take Care that the Laws be faithfully executed.” Executive orders are the tools that a president uses to direct the executive branch to faithfully implement the laws. The Supreme Court has held, “The president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
By making this deceptive campaign promise to eliminate birthright citizenship by executive order, the president is promising something that he does not have the authority to deliver. He is blatantly lying to his base about his abilities as president. By attempting to deceive, he is violating the first duty of ethical campaigning--to create an informed electorate. When the president makes unethical and deceptive campaign promises he serves neither his base nor his country.