# 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:** 2
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [October 30, 2018, 4:03pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/21 "2018-10-30T16:03:46Z")
Yep, that’s some classy tortured reasoning, there, Bob. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 30, 2018, 4:05pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/22 "2018-10-30T16:05:40Z")
Exactly. If the US goverenwmbt has no jurisdiction over illegal immigrants, how does the ICE have the power to arrest them, take their children away from them, and deport them against their will? Those are all examples of the US federal government asserting jurisdiction over illegal immigrants. ---
**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:** [October 30, 2018, 4:18pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/23 "2018-10-30T16:18:10Z")
> [@Clu-Me-In](#): > > Sorry, I mean in terms of a President attempting to subvert the Constitution using Executive powers. What part of the Constitution was subverted, exactly? > [@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. Nah. Trump will probably just say that migrants aren’t people. ---
**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:** [October 30, 2018, 4:25pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/24 "2018-10-30T16:25:39Z")
The “subject to the jurisdiction thereof” clause was meant to exclude diplomats, and Indian tribes. Nowadays there are no Indian tribes inside the borders but outside the jurisdiction of the United States. > [@magellan01](#): > > 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. You can’t suspend the Constitution if you pinky swear it’s only for a limited time. The Constitution is the Constitution. How many people do you think there are in that caravan that are pregnant? And how exactly would it be a crisis if it really happened that a couple dozen people illegally crossed the border and then gave birth? OK, so a couple dozen kids would be US citizens. So what? How is that a fucking emergency? What a bizarre argument. ---
**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:** [October 30, 2018, 4:27pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/25 "2018-10-30T16:27:23Z")
How about a 6-month ban on selling guns due to an emergency at the border…caravans of people coming here to purchase guns. ---
**Author:** ![sbunny8](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@sbunny8](https://boards.straightdope.com/u/sbunny8)\ **Post date:** [October 30, 2018, 4:42pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/26 "2018-10-30T16:42:44Z")
It seems obvious to me that 14A is plainly worded and the President can’t do anything about it. However, I’ve seen other examples where I thought the law was plainly worded and miraculously the courts found a way to interpret it otherwise, frequently in a way that benefited the political party which appointed them. What’s legal and what isn’t legal isn’t based on logic; it’s based on what politicians can convince people to let them get away with.\* If you spend enough millions of dollars on lawyers, they might come up with a convincing argument that’s good enough to make just enough people say “meh”. Yes the President can issue an executive order. Yes the courts could possibly come up with a somewhat logical-sounding reason to let it stand. The final decision might come down to whether letting it stand gets more votes or fewer votes for their political party in the next election cycle. Whoever has the most expensive lawyer usually wins. Put another way, whoever has the gold makes the rules. - When you get pulled over by a traffic cop, it doesn’t matter what words were actually written on the piece of paper by the legislators who wrote the law. What matters is #1 What does the cop THINK is legal/illegal, #2 What arguments will the lawyers ARGUE is legal/illegal, #3 What does the judge BELIEVE is legal/illegal, and #4 Can they CONVINCE you that it’s in your best interest to just pay the fine and be done with it. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [October 30, 2018, 4:57pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/27 "2018-10-30T16:57:45Z")
> [@sbunny8](#): > > It seems obvious to me that 14A is plainly worded and the President can’t do anything about it. However, I’ve seen other examples where I thought the law was plainly worded and miraculously the courts found a way to interpret it otherwise, frequently in a way that benefited the political party which appointed them. What’s legal and what isn’t legal isn’t based on logic; it’s based on what politicians can convince people to let them get away with.\* If you spend enough millions of dollars on lawyers, they might come up with a convincing argument that’s good enough to make just enough people say “meh”. [Relevant _Pearls Before Swine_](https://i.pinimg.com/originals/5a/a3/33/5aa3332c4e16c7ce636ee36be50aebd7.jpg). ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [October 30, 2018, 5:23pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/28 "2018-10-30T17:23:50Z")
> [@Jonathan\_Chance](#): > > Yep, that’s some classy tortured reasoning, there, Bob. Jes’ so’s we’re all on the same page, I’m repeating the argument, I don’t buy it. 😉 ---
**Author:** ![senoy](https://avatars.discourse-cdn.com/v4/letter/s/dbc845/32.png) [@senoy](https://boards.straightdope.com/u/senoy)\ **Post date:** [October 30, 2018, 6:05pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/29 "2018-10-30T18:05:43Z")
Jus soli is weird anyway. It’s just a function of the Americas since everyone is an immigrant and it was too much of a chore to try and track down nationalities. What’s more interesting is whether if this ever went to court the SC would adopt a ‘plain reading,’ ‘pragmatic reading’ or ‘original intent.’ I would say regardless, it’s executive overreach, but if it was changed in the legislature, I think there is a small chance it would stand. The ‘author’s intent’ of the 14th was obviously to grant citizenship to freed slaves. I don’t think anyone questions that. Was there an ancillary reasoning to give citizenship to immigrants as well, or was it an unintended consequence? That’s a question they’d have to answer. For the record, Thomas, Gorsuch, Roberts and Ginsberg are all stated originalists (although I can’t imagine Ginsberg voting for this. Originalism only goes so far and she interprets originalism in a much different way than her conservative peers.) and Alito is a mostly originalist. It seems likely that Kavanaugh is an originalist as well. Sotomayor is an occasional originalist when the mood strikes her. Kagan is not an originalist at all and Breyer is an anti-originalist. So, really, the bottom line is that I personally don’t believe that the court would allow an executive order to overturn jus soli. I do think though that if it were pushed through the legislature, the court MIGHT allow it. I don’t think that it would, but I don’t think that it’s guaranteed to overturn it either. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [October 30, 2018, 6:09pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/30 "2018-10-30T18:09:47Z")
So, to me it seems that (1) the meaning of the relevant 14th Amendment text is obvious and unambiguous, and (2) the President can’t overrule the Constitution by executive order. But the more important question is, what would the Supreme Court think? Is anti-immigrant sentiment so strong on the right that even supposed textualists like Gorsuch would be willing to ignore the unambiguous wording of the 14th Amendment? ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [October 30, 2018, 6:10pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/31 "2018-10-30T18:10:27Z")
If this got to SCOTUS, it would probably be struck down 9-0. Or maybe 8-1 (Thomas is the only one i can see voting in favor of it.) ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [October 30, 2018, 6:14pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/32 "2018-10-30T18:14:12Z")
> [@Jonathan\_Chance](#): > > Yep, that’s some classy tortured reasoning, there, Bob. Oh, it’s incredibly tortured. But it is _reasoning_. There is a (batshit crazy) argument to be made. And if you think “tortured reasoning” would stop the republicans on the supreme court from going ahead with something, well, maybe you should take a closer look at some of their major landmark cases, particularly the 5-4 ones. And there have been some [pretty fucking substantial 5-4 cases in the last decade](https://slate.com/news-and-politics/2018/10/john-roberts-history-brett-kavanaugh-supreme-court.html)! How were those big Republican interests served? The Roberts Five have opened the floodgates of Republican-friendly unlimited money into our elections, eliminated historic voting rights protections for Democrat-leaning voters, sanctioned voter suppression, and turned a blind eye to partisan gerrymandering, all helping achieve Republican electoral victories. They’ve made it harder for the government to regulate corporations, easier for polluters to pollute, and increasingly difficult for individuals to get their day in court, where a civil jury of one’s peers can protect individuals against the excesses of private wealth and power. Thanks to the Roberts Five, it is ever easier to discriminate against minorities, while corporations and right-wing special interests like the National Rifle Association regularly win constitutional protections unimaginable to the founders. Look, try this simple test when examining reasoning which seems too bizarre for any legal scholar to take seriously. Can you believe that **Bricker** would, in theory, accept or defend that reasoning on this forum? If so, there’s really no reason to believe Alito, Thomas, Gorsuch, or Kavanaugh wouldn’t do the same, at which point you’re basically relying on Roberts to be the sane person in the room, which is a pretty scary prospect. And I think, if push came to shove, **Bricker** would defend this. He’s defended far worse in the various threads about voter disenfranchisement. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 30, 2018, 6:16pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/33 "2018-10-30T18:16:32Z")
> [@Jonathan\_Chance](#): > > 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. I thought the constitution only guaranteed the right to keep and bear arms - not the right to _buy and sell_ them. 😃 [/hijack] ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 30, 2018, 6:19pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/34 "2018-10-30T18:19:29Z")
> [@Budget\_Player\_Cadet](#): > > Oh, it’s incredibly tortured. But it is _reasoning_. There is a (batshit crazy) argument to be made. And if you think “tortured reasoning” would stop the republicans on the supreme court from going ahead with something, well, maybe you should take a closer look at some of their major landmark cases, particularly the 5-4 ones. And there have been some [pretty fucking substantial 5-4 cases in the last decade](https://slate.com/news-and-politics/2018/10/john-roberts-history-brett-kavanaugh-supreme-court.html)! > > How were those big Republican interests served? The Roberts Five have opened the floodgates of Republican-friendly unlimited money into our elections, eliminated historic voting rights protections for Democrat-leaning voters, sanctioned voter suppression, and turned a blind eye to partisan gerrymandering, all helping achieve Republican electoral victories. They’ve made it harder for the government to regulate corporations, easier for polluters to pollute, and increasingly difficult for individuals to get their day in court, where a civil jury of one’s peers can protect individuals against the excesses of private wealth and power. Thanks to the Roberts Five, it is ever easier to discriminate against minorities, while corporations and right-wing special interests like the National Rifle Association regularly win constitutional protections unimaginable to the founders. > > Look, try this simple test when examining reasoning which seems too bizarre for any legal scholar to take seriously. Can you believe that **Bricker** would, in theory, accept or defend that reasoning on this forum? If so, there’s really no reason to believe Alito, Thomas, Gorsuch, or Kavanaugh wouldn’t do the same, at which point you’re basically relying on Roberts to be the sane person in the room, which is a pretty scary prospect. And I think, if push came to shove, **Bricker** would defend this. He’s defended far worse in the various threads about voter disenfranchisement. I bet he (Bricker) wouldn’t…nor do I think the other USSC justices would. I guess we shall see, though honestly I think this is a trial balloon by Trump that’s intended merely to rally and rile the faithful to vote and that, once that vote is done this will get dropped. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 6:25pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/35 "2018-10-30T18:25:28Z")
> [@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. That is the argument. It’s why the children of foreign diplomats, or soldiers can’t claim citizenship if they are born here, and it also denied Amerindians citizenship (which I believe was the original intent) There was a Supreme Court case in 1898 that granted citizenship to the children of **legal** immigrants. * * * My take? The President can clearly make such an Executive Order. It will be immediately challenged and quickly go to the Supreme Court. This is probably what he intends. FWIW, the US and Canada are the only remaining industrialized countries with birthright citizenship. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 30, 2018, 6:32pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/36 "2018-10-30T18:32:05Z")
> [@Scylla](#): > > That is the argument. It’s why the children of foreign diplomats, or soldiers can’t claim citizenship if they are born here, and it also denied Amerindians citizenship (which I believe was the original intent) > > There was a Supreme Court case in 1898 that granted citizenship to the children of **legal** immigrants. > > * * * > > My take? > > The President can clearly make such an Executive Order. It will be immediately challenged and quickly go to the Supreme Court. This is probably what he intends. > > FWIW, the US and Canada are the only remaining industrialized countries with birthright citizenship. No, there are a bunch of countries with unrestricted Jus Soli…from this wiki: > [@](#): > > Unrestricted jus soli > Antigua and Barbuda: Guaranteed by the Constitution.[11][12] > Argentina Argentina[11] > Barbados Barbados: Guaranteed by the Constitution.[11][13] However, the Barbados Ministry of Labour & Immigration recently proposed ending automatic birthright citizenship.[14] > Belize[11][15] > Bolivia[11] > Brazil Brazil[11][16] (requires that the foreign parents are not working for their country’s government in Brazil by the time the child is born). > Canada Canada[11][17] > Chad Chad [18][19] (The choice to take Chadian citizenship, or that of the parents is made at 18 years of age.)[20] > Chile Chile[11][21] > Costa Rica[22] (requires registration with the Costa Rican government before the age of twenty-five) > Cuba[11] > Dominica[11][23] > Ecuador[11] > El Salvador[11] > Fiji[24] > Grenada[11] > Guatemala[11] > Guyana[11] > Honduras[11] > Jamaica[11][25] > Lesotho[26] > Mexico Mexico[11][27] > Nicaragua[11] > Pakistan Pakistan[28][29] > Panama[11][30] > Paraguay Paraguay[11] > Peru Peru (registration required at 18 years of age)[11] > Saint Kitts and Nevis[11] > Saint Lucia[11] > Saint Vincent and the Grenadines[11] > Tanzania[19]: Per the Tanzania Citizenship Act of 1995, “any child born within the borders of the United Republic of Tanzania, on or after Union Day, 26 April 1964, is granted citizenship of Tanzania, except for children of foreign diplomats.”[31] > Trinidad and Tobago [11][32] > Tuvalu[33] > United States United States: The 14th Amendment to the United States Constitution provides that “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”.[34] The phrase “subject to the jurisdiction thereof” excludes children born to foreign diplomats and children born to enemy forces engaged in hostile occupation of the country’s territory.[35] > Uruguay Uruguay[11][36] > Venezuela[11][37] ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 30, 2018, 6:36pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/37 "2018-10-30T18:36:35Z")
The answer to the OP is that legally he cannot, but practically he can if he controls the Supreme Court. > [@Scylla](#): > > FWIW, the US and Canada are the only remaining industrialized countries with birthright citizenship. “Industrialized” is doing a lot of work in this claim. It is only true for totally made-up definitions of industrialized. For example, Brazil is the world’s 9th largest economy. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 6:36pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/38 "2018-10-30T18:36:40Z")
> [@XT](#): > > No, there are a bunch of countries with unrestricted Jus Soli…from this wiki: Like I said, the US and Canada are the only remaining industrialized countries. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 6:38pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/39 "2018-10-30T18:38:58Z")
> [@Richard\_Parker](#): > > The answer to the OP is that legally he cannot, but practically he can if he controls the Supreme Court. > > “Industrialized” is doing a lot of work in this claim. It is only true for totally made-up definitions of industrialized. For example, Brazil is the world’s 9th largest economy. :sigh: It doesn’t make it industrialized. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 30, 2018, 6:39pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/40 "2018-10-30T18:39:19Z")
> [@Scylla](#): > > Like I said, the US and Canada are the only remaining industrialized countries. Are you claiming Brazil and Mexico aren’t industrialized?? I think several of the others are as well, except under the loosest definition of ‘industrialized’ but by any definition both of those countries are. [Previous page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=1) [Next page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=3)