Can a President over rule the Constitution with an Executive Order

Donald Trump says he will overrule the 14th with an Executive order.

No, and I doubt he will follow through once this election is over. But he can’t simply do this by executive order fiat. What he’s doing is focusing the minds of the voters directly on immigration fears and away from all of the inconvenient stuff that’s been happening lately.

Wasn’t DACA essentially the same thing?

No, it’s not the same thing at all. DACA addressed young children brought to the US illegally and who have lived here for years or even decades in some cases. This is an attack on a fundamental (and protected by the Constitution) right of anyone born in the US to be a US citizen.

He can’t do it, this is all just bluster and horseshit on his part, just something to rile and rally the voters for a final push to keep the Republicans in control for a bit longer.

In what way was it the same thing? Note: DACA had nothing to do with citizenship. That is, it didn’t grant anyone citizenship nor did it take citizenship away from anyone. It didn’t address citizenship, just whether someone could stay and work or study in the US.

I’m not sure exactly what you’re asking, but DACA concerned foreign-born children raised here. If you mean, was Obama trying to do something through executive order that he wasn’t allowed to, then maybe? I thought parts were deemed OK and parts were deemed overreach by some court cases. Seems like a hijack to this thread to go into any more detail, though.

It’s basically different regardless, as Obama wasn’t directly challenging the Constitution via an Executive order fiat which Trump certainly would be doing if he attempted this. This would be like Obama or some other president setting aside the 1st by using Executive order.

The President can do anything he isn’t actively stopped from doing.

Or the 2nd, to make it a bit more hot-button.

Imagine if a future president just - by executive order and without congressional participation - banned the sale of handguns. He’d be explicitly contradicting something written out in the constitution. He might even have a friendly lawyer issue an opinion that ‘well, arms only meant those types in circulation in the 1780s so people can have those all they want’.

But that wouldn’t make it constitutional.

Exactly. I didn’t want to use the 2nd as I didn’t want a possible hijack, especially since I think that many would see such an action in a positive way on this board, while the 1st is pretty much universal (at least wrt US 'dopers) as something we wouldn’t want to have changed by presidential fiat.

Oh - I just posted over in the Elections thread that Lindsey Graham wants in on this action:

So, I guess this is the new “Build a Wall!”

Use of Executive orders.

Unless he wants to introduce a new Amendment to change or vacate the 14th he’s pissing up a rope, IMHO. And I seriously doubt either he or Trump are talking about actually proposing a new Amendment to take away birthright citizenship.

Sorry, I mean in terms of a President attempting to subvert the Constitution using Executive powers.

He might be able to do it if he put limitations on it. For instance a 6-month ban due to an emergency at the border…caravans of people coming here specifically to game the system.

Except as has been explained to you, Obama wasn’t trying to subvert the Constitution using Executive powers, while what Trump is proposing would be. It would be a direct violation of the Constitution, full stop.

Look, there’s clearly a debate about immigration that needs to be had at the highest levels of government. We’re a long way from the last successful attempt at immigration reform and a new work up is probably a good idea. Whether that include birthright citizenship or not is a question for that debate.

What I certainly never want to see happen is fundamental change is US governance through executive fiat. I didn’t like it under Obama nor GWB and I sure as hell won’t like it under Trump. The continual enshrinement of near-royal status of the presidency is a wrong, wrong road to take for America and it should be fought as long as possible.

I’m pretty sure it would get struck down, magellan01. The text is, to me, fairly clear:

“Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Reading ‘and subject to the jurisdiction thereof’ as somehow making the constitution not apply to foreign nationals is pretty wishful thinking. I think an Amendment would be required to alter birthright citizenship. And good luck with that.

Note: I do not support this argument, but apparently the argument that Trump’s advisors are trying to use is as follows.

The 14th Amendment says (in part) “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.”

The argument (which I do not share) is that illegal immigrants (as opposed to legal immigrants, legal visitors, etc) are not “subject to the jurisdiction of the US” and therefore their kids are not eligible to automatically be considered citizens.

I’d love to see the Supreme Court rule that the government has no jurisdiction over illegal immigrants on U.S. soil. I mean, how can the government deport them if it has no jurisdiction over them? Hell, it can’t even arrest them for crimes.