Editorial: Chabot's Stance on Trump's Potential Birthright Executive Order is Alarming

Even staunch conservatives — including the U.S. House's most powerful Republican — acknowledge Trump is wrong about his ability to use an executive order to change birthright citizenship. Chabot should do the same.

Oct 31, 2018 at 11:23 am

click to enlarge U.S. Rep. Steve Chabot - Photo: Official Portrait
Photo: Official Portrait
U.S. Rep. Steve Chabot

Last night, viewers across Ohio’s 1st Congressional District and beyond settled in for what promised to be another mind-numbing, acrimonious debate between Republican U.S. Rep. Steve Chabot and his opponent, Democrat Aftab Pureval.

The debates leading up to this one have been mostly disappointing affairs — plenty of mud-slinging without enough substantive talk about policy or proposals for solutions to the district’s big problems, from its crumbling infrastructure to its worries about health care.  

That's been par for the course in a frustrating campaign.

Chabot, the entrenched 22-year career politician in a heavily gerrymandered district, and outside groups buying ads against Pureval have run a downright misleading campaign against the Hamilton County Clerk of Courts. The latter, for example, attempted to tie him to a settlement with Libya he had no part in and that mainstream Republicans in Congress passed and then-president George W. Bush signed — an ad that received harsh reviews from independent fact checkers. Chabot's campaign itself has released highly-misleading ads about Pureval's time as clerk of courts.

Meanwhile, Pureval’s campaign has more or less had its wheels fall off. There are the pending charges before the Ohio Elections Commission about Pureval’s spending from his clerk of courts campaign for his congressional bid — a violation of federal election law if true. And then there’s the kerfuffle about one of his campaign interns allegedly infiltrating Chabot’s campaign, another potential violation of the law.

Suffice it to say, neither camp has run a great race.

But that’s not why we’re writing this editorial. You see, yesterday evening’s event saw something else entirely.

Last night, before a public audience, Chabot, a member of Congress seeking reelection, told viewers that he supported the president of the United States changing a widely-held and long-honored interpretation of the constitution with an executive order, despite the fact many legal scholars believe that to be highly unconstitutional.

President Donald Trump earlier this week said he would issue the executive order to rescind so-called “birthright citizenship” for people born in the United States to undocumented parents.

As he did so, he publicly spread false information. Trump claimed the United States is the only country in the world that offers birthright citizenship, a claim that is flatly untrue. Canada, for instance, also observes that policy, as does Mexico and at least 27 other countries.

The right to citizenship for all those born on American soil began with the 14th Amendment, which was ratified in 1868. That amendment’s first section deals with citizenship.

“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,” it reads. “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.”

The amendment, designed to give freed slaves citizenship, clearly says “all persons born or naturalized in the United States.”

It has since been interpreted that way by the Supreme Court — first in 1898 — and by the federal government, including a 1952 act of Congress defining citizenship that has been subsequently amended without changing birthright citizenship. Trump’s assertion that he will be able to change the interpretation or text of an amendment to the constitution with an executive order — not through the difficult process laid out in the constitution — is flatly against the way our government is supposed to operate.

Despite its clear and absolute wording, Chabot says the amendment isn’t being implemented the way its writers intended.

“I don’t think our founders nor the 14th Amendment signers had in mind — what they had in mind, it was right after the Civil War … what they wanted to say was if you were born here, you’re a citizen,” Chabot said during the debate. “They didn't mean people sneaking across the border from Mexico or a caravan coming up from Honduras or Guatemala.”

This is not about the partisan debate around citizenship, and whether all those born in the U.S. should be citizens. This is about the power to change the interpretation and meaning of the constitution. In our system, it doesn't matter what Chabot himself thinks the writers meant. Nor does Trump have the power to decide himself what those writers had in mind, especially not when the language is so clear. Nor is he given the power to change the long-held legal interpretation of the constitution, or the actual text of the document.

The former power is given to the courts.

The latter power is given to the people via a long, difficult process for amending the nation’s foundational document. Either two-thirds of both the House and the Senate must propose an amendment that then must be ratified by three-quarters of states’ legislative bodies or ratifying conventions, or a constitutional convention must be called by Congress after demand from two-thirds of state legislatures, after which three-quarters of states’ legislative bodies or ratifying conventions approve the amendment.

While some legal arguments about the amendment’s intent revolve around the word “jurisdiction” and its meaning in 1868, Congress has since passed laws that codify federal understanding of birthright citizenship. That is to say, in issuing his executive order, Trump would not only be circumventing 150 years of constitutional interpretation, but laws passed by Congress.

Even conservatives who want to see birthright citizenship changed acknowledge this. Among them is U.S. House Speaker Paul Ryan.

"You cannot end birthright citizenship with an executive order," he said yesterday in an interview with WVLK, a radio station in Lexington, Ky. "You know as a conservative, I'm a believer in following the plain text of the Constitution. And I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."

After the debate, Chabot at least acknowledged Trump’s potential executive order would lead to a legal fight. What he didn’t mention is that such an executive order would almost certainly be defeated in court because it is unconstitutional. He also did not push back at the blatant falsehoods the president put forward as he floated his potential executive order.

“I think it’ll be lawyered, it’ll be wordsmithed and it’ll be right,” Chabot said after the debate. “I do think you’ll have a 9th Circuit judge or somebody from the left coast — I should say West Coast — will probably strike it down, then it’ll work its way up to the Supreme Court and we’ll see what happens." 

Chabot’s willingness to support a president circumventing the plain text of the constitution, 150 years of legal precedent, laws passed by Congress defining citizenship and the involved process necessary to amend the constitution show either a basic lack of understanding of civics or an alarming willingness to throw the checks and balances inherent in our foundational document out the window.

Chabot’s unwillingness to push back at plainly-evident falsehoods promoted by the president in the pursuit of powers he does not have is also very dismaying.

Chabot should know better. His statements last night are not excusable and should not be tolerated by Americans who support our government's foundational document.