‘Isn’t this against the constitution?’ Donald Trump’s promised executive order may just be an empty threat

Donald Trump made several dubious promises during his 2024 presidential campaign. One of Trump’s plans involves “ending” the birthright citizenships for future children of undocumented immigrants.

During his campaign, Trump claimed that he’d sign an executive order that would make it impossible for the children of undocumented immigrants to get birthright citizenship. “Going forward, the future children of illegal aliens will not receive automatic US citizenship,” he said. He also accused birthright citizenship of causing illegal immigration in the same speech.

One Twitter user pointed out, “Isn’t this against the Constitution?” The simple answer is yes. Trump’s proposed executive order is definitely unconstitutional.

Although Trump said this new executive order will be done “under the correct interpretation of the law,” the US Constitution states otherwise. There will be no correct interpretation if the source of law is inherently against the policy Trump wants to enforce. The first section of the 14th Amendment considers children born in the United States to be natural-born citizens of the country. Jus soli in legal theory provides citizenship by birth within a state’s territory, regardless of their parental citizenship.

Can Executive Orders override the Constitution?

Simply put, the executive order Donald Trump plans to pursue is nearly impossible to enact. Executive Orders from the President are still subject to judicial review. The Supreme Court can deem whether an executive order is constitutional (or otherwise).

In the worst case that Trump’s Executive Order is approved by the judiciary, Congress can pass bills that make it difficult to enforce or enact Trump’s directive. There are concerns over a Republican-dominated Congress, but even this promise from Trump is hard to fulfill. Not to mention, undocumented immigrants are difficult to track. Trump’s administration will have to set up bureaucracies in place just to track these undocumented children. In other words, what Trump said may be nothing more than another empty threat.

Trump can attempt to make his campaign promise a reality, but he’ll have to go against the very Constitution he swore to protect.