# Can a President over rule the Constitution with an Executive Order **URL:** \ **Category:** Great Debates\ **Created:** [October 30, 2018, 2:42pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725 "2018-10-30T14:42:15Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 1, 2018, 5:22pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/181 "2018-11-01T17:22:14Z")
I’m just impressed that those on the left have all of a sudden become textualists. If it is abortion or same sex marriage or prayers at a high school football game we look at penumbras and emanations. Keep and bear arms does not mean actually owning guns to the left. But on this issue, I have my liberal friends screaming, “Look, it says right there subject to the jurisdiction! The text is plain!” I smile, hoping that it is a good start to come to the light. ---
**Author:** ![Chingon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chingon/32/17645_2.png) [@Chingon](https://boards.straightdope.com/u/Chingon)\ **Post date:** [November 1, 2018, 5:33pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/182 "2018-11-01T17:33:11Z")
Are they really screaming at you? Your friends? That is bizzare behavior imo. Don’t sound like people I would hang out with. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 1, 2018, 5:39pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/183 "2018-11-01T17:39:58Z")
> [@UltraVires](#): > > I’m just impressed that those on the left have all of a sudden become textualists. If it is abortion or same sex marriage or prayers at a high school football game we look at penumbras and emanations. Keep and bear arms does not mean actually owning guns to the left. > > But on this issue, I have my liberal friends screaming, “Look, it says right there subject to the jurisdiction! The text is plain!” I smile, hoping that it is a good start to come to the light. Being able to read for comprehension isn’t the same as being a textualist. The more laughable situation is those who are textualists suddenly denying that it ever was a thing. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [November 1, 2018, 9:09pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/184 "2018-11-01T21:09:09Z")
> [@Saint\_Cad](#): > > I’m not so sure. I believe at the time (and correct me if I am wrong) that most countries did not recognize dual-citizenship so if a woman came from the UK and had a baby that the baby while legally a US citizen would reside in and choose to be a citizen of the UK so why worry about it\*. People say things like “The United States does not recognize dual citizenship”. But they don’t quite get what that means. It means, that as far as the United State is concerned, if you are a citizen of the United States then your citizenship status in another country is irrelevant. But yes, if you visited the United States as a tourist from the UK in 1892, and had a baby here, that baby would be a US citizen according to US law. And then if you and your baby went back home to the UK, that baby would be a UK subject by UK law. Lots and lots of people from the UK went overseas and had children in various parts of the world, it was kind of a thing. The fact that the US considered your child a US citizen was irrelevant to the UK, and the fact that the UK considered your child a UK subject was irrelevant to the US. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 1, 2018, 10:22pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/185 "2018-11-01T22:22:49Z")
My belief is that under current law this EO would be thrown out in court. But I do believe that it would be legal under the 14th Amendment for Congress to define “subject to jurisdiction” to mean “owing alligience to the United States” or other verbiage applying to only those living here legally or citizens abroad while ensuring that all in the United States, whether legally, illegally or temporarily must abide by Federal and State laws. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 1, 2018, 10:26pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/186 "2018-11-01T22:26:53Z")
> [@Rick\_Kitchen](#): > > Whatever the Senator said at the time, that’s now what the Amendment says. Period. Or more to the point, it is what the current law says when defining “subject to the jurisdiction thereof”. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 2, 2018, 12:42am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/187 "2018-11-02T00:42:37Z")
UltraVires: Please stop with the nonsense of “if a diplomat’s not subject to US jurisdiction, then they can’t be kicked out of the country”. It’s a nonsense argument and those who are advancing it cannot be unaware of that. Subject to US jurisdiction means, of course, that someone can be arrested, tried, and punished by the US. Removal of diplomatic accreditation is not a punishment; it’s an administrative and diplomatic action. If the diplomat concerned suffers any consequences (legal, career) at home, that’s not from US jurisdiction. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 2, 2018, 12:53am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/188 "2018-11-02T00:53:15Z")
> [@UltraVires](#): > > I’m just impressed that those on the left have all of a sudden become textualists. If it is abortion or same sex marriage or prayers at a high school football game we look at penumbras and emanations. Keep and bear arms does not mean actually owning guns to the left. > > But on this issue, I have my liberal friends screaming, “Look, it says right there subject to the jurisdiction! The text is plain!” I smile, hoping that it is a good start to come to the light. Abortion and same sex marriage and prohibiting government-set prayers were all declared to be constitutional in accordance with established law. Which is the exact opposite of what Trump is trying to do; he wants to do something that has been declared unconstitutional and in defiance of the law. How do you see any similarity between these things? ---
**Author:** ![snoe](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@snoe](https://boards.straightdope.com/u/snoe)\ **Post date:** [November 2, 2018, 3:45am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/189 "2018-11-02T03:45:32Z")
I hope it’s not threadshitting to point out\*\*that this all started when an Axios interviewer posed eliminating birthright citizenship\* as a hypothetical to Trump, and he took the bait, and said he could do it without an amendment. And then people started arguing about whether he could do it. \*\* \*Media has reported that this is an idea with support in the White House, which wouldn’t shock me — Steven Miller is basically a low-grade white nationalist, and he’s still working there. It wasn’t a bad question to ask Trump; but why are we taking his dumb-ass answer to the question seriously enough to debate its constitutionality? ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [November 2, 2018, 3:55am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/190 "2018-11-02T03:55:51Z")
> [@UltraVires](#): > > I’m just impressed that those on the left have all of a sudden become textualists. If it is abortion or same sex marriage or prayers at a high school football game we look at penumbras and emanations. Keep and bear arms does not mean actually owning guns to the left. > > But on this issue, I have my liberal friends screaming, “Look, it says right there subject to the jurisdiction! The text is plain!” I smile, hoping that it is a good start to come to the light. The truest texualist, Bork (author of the Tempting of America) was a leftist. Have a read. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 2, 2018, 5:20am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/191 "2018-11-02T05:20:57Z")
> [@Fenris](#): > > 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. \*But they are. \*They have to follow the same laws. They are routinely arrested and deported by ICE sure, but if they shoplift from a store or whatever, they can be arrested and jailed just like everyone else- except that they be deported instead. They have to pay taxes, and indeed most do pay taxes. Only some Diplomats are not _“subject to the jurisdiction thereof”_ thus I would WAG that the child of a diplomat would not be a US Citizen by birth? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 2, 2018, 5:23am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/192 "2018-11-02T05:23:59Z")
> [@Slash1972](#): > > How about a 6-month ban on selling guns due to an emergency at the border…caravans of people coming here to purchase guns. They can only buy guns if they are a legal resident of that state. So, in general, yes, they can be barred from buying a gun. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 2, 2018, 5:42am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/193 "2018-11-02T05:42:01Z")
> [@Saint\_Cad](#): > > And might I add to this discussion that the Constitution HAS been overruled by [executive order](http://historymatters.gmu.edu/d/5154) and that it was [upheld by SCOTUS](https://en.wikipedia.org/wiki/Korematsu_v._United_States). How did that overrule the Constitution? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 2, 2018, 5:46am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/194 "2018-11-02T05:46:07Z")
> [@Ravenman](#): > > … > What’s next, recalling that we once had a policy of genocide of Native Americans, … But we never did. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 2, 2018, 8:04am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/195 "2018-11-02T08:04:09Z")
> [@Monty](#): > > UltraVires: Please stop with the nonsense of “if a diplomat’s not subject to US jurisdiction, then they can’t be kicked out of the country”. It’s a nonsense argument and those who are advancing it cannot be unaware of that. Subject to US jurisdiction means, of course, that someone can be arrested, tried, and punished by the US. Removal of diplomatic accreditation is not a punishment; it’s an administrative and diplomatic action. If the diplomat concerned suffers any consequences (legal, career) at home, that’s not from US jurisdiction. This is not my position!!! I was replying to another poster who claimed that if illegal immigrants were not STTJ, then we could not even deport them. For the reasons you state, we could, just like we can “deport” diplomats that we get upset with. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 2, 2018, 8:07am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/196 "2018-11-02T08:07:41Z")
> [@Little\_Nemo](#): > > Abortion and same sex marriage and prohibiting government-set prayers were all declared to be constitutional in accordance with established law. > > Which is the exact opposite of what Trump is trying to do; he wants to do something that has been declared unconstitutional and in defiance of the law. > > How do you see any similarity between these things? Well, let’s not get into that debate again. Whatever the propriety of legal same sex marriage, millenia of it being otherwise cannot mean that its constitutionality was based on “established law.” But that aside, birthright citizenship for those born of parents in the country illegally has not been decided upon by the courts. I’m not sure how you can say if we remove that for those children, then what Trump is doing is “overrul[ing] the Constitution.” Again, though, unless someone could provide me with any scholarship that says “subject to the jurisdiction of” meant something other than what seems to be its plain meaning, I agree with the majority. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 2, 2018, 11:42am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/197 "2018-11-02T11:42:30Z")
> [@DrDeth](#): > > But we never did. Riiiight. Wink wink, I get your drift. No “policy,” that’s the ticket. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 2, 2018, 12:35pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/198 "2018-11-02T12:35:52Z")
> [@UltraVires](#): > > This is not my position!!! I was replying to another poster who claimed that if illegal immigrants were not STTJ, then we could not even deport them. For the reasons you state, we could, just like we can “deport” diplomats that we get upset with. Except what you wrote here still exhibits the most facile grasp of the issue at hand. Let me dumb it down even further. We tell diplomats: “You aren’t welcome here, but it isn’t like we can take you to court or anything.” And in 99.99999999% of cases, the person says, “Harumph! I know where I’m not wanted!” and is gone within a matter of days. If we were to tell illegal immigrants, “You aren’t welcome here, but it isn’t like we can take you to court or anything.” What do you suppose the reaction would be? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 2, 2018, 1:03pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/199 "2018-11-02T13:03:08Z")
> [@Saint\_Cad](#): > > My belief is that under current law this EO would be thrown out in court. But I do believe that it would be legal under the 14th Amendment for Congress to define “subject to jurisdiction” to mean “owing alligience to the United States” or other verbiage applying to only those living here legally or citizens abroad while ensuring that all in the United States, whether legally, illegally or temporarily must abide by Federal and State laws. _Seriously??_ It’s not like ‘jurisdiction’ is some colloquial term that has a new meaning with every new cohort of teenagers. It’s a well-defined legal term of art. Sure, Congress _could_ redefine it, if they chose to be incredibly stupid. But they can’t redefine what it meant to the drafters of the 14th Amendment. Their redefinition would only apply to Federal statutes. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [November 2, 2018, 1:03pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/200 "2018-11-02T13:03:47Z")
> [@DrDeth](#): > > They can only buy guns if they are a legal resident of that state. So, in general, yes, they can be barred from buying a gun. You know the difference between “selling” and “buying” right? [Previous page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=9) [Next page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=11)