Ending birthright citizenship is more complicated than it sounds

Putting teeth into President Donald Trump's Day One executive order ending birthright citizenship to children born to immigrants who are in the U.S. without legal status could take some doing in Texas.

Why? Because Texas birth certificates do not contain a citizenship box to check for either the mother or the baby, according to the Department of State Health Services. Therefore, not only do we not know how many Texas newborns in the coming weeks, months and years would be noncitizens, but we don't know how many living Texans would have been noncitizens had the birthright order been issued long ago.

Trump's order, titled "Protecting the Meaning and Value of American Citizenship," was among a flurry of executive actions he issued shortly after he took the oath of office Monday to resume his presidency after a four-year gap. Almost as fast as the new president issued the birthright citizenship order, attorneys general from four states filed litigation seeking to block it from taking effect.

On Thursday, U.S. District Judge John C. Coughenour in the state of Washington issued a 14-day pause on the order while the finer points of the executive action could be argued. The judge, who was appointed by then-President Ronald Reagan, called the order "blatantly unconstitutional" and said it “boggles the mind” that anyone might think it has legal merit.

The whole concept of birthright citizenship is rooted in the 14th Amendment to the Constitution.

"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," Section One of the amendment states. "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 nullified the slavery-era Dred Scott decision in which the Supreme Court held that enslaved people were not citizens, whether they were born in the United States or not. In his order, Trump acknowledges the "All persons born or naturalized in the United States" clause in the 14th Amendment, but he argues that those born to people who do not have authorization to be in the country are not "subject to the jurisdiction thereof."

And as such, he wrote, they may be excluded from the ranks of citizenship.

But because the matter is before the courts, it's fair to assume that the order will linger in limbo for some time.

Once Coughenour's 14-day temporary restraining order expires, the state attorneys general of Washington, Arizona, Illinois and Oregon can argue with the still-under-construction Trump Justice Department over the legal issues.

If the judge did, in fact, telegraph his leanings in the "boggles the mind" observation and rules for the states, it's a slam-dunk that the DOJ would appeal. That would send it the 9th U.S. Circuit Court of Appeals, arguably the most liberal such court in the nation. If so, it would stand to reason the judges would be less than sympathetic with Trump's order.

And, again, look for an appeal to be filed with the Supreme Court with the same velocity as Trump's original order and the suit by the states that followed. It remains an open question as to exactly how fast the high court would want to move on the matter.

Another option for ending birthright citizenship for the purposes laid out in Trump's order would be to amend the 14th Amendment. But that process would be the opposite of speedy. First, it would take a two-thirds majority in both the House and Senate. Neither party has anywhere close to a two-thirds majority, meaning that the part about a proposed amendment needing to be ratified by the legislatures in three-quarters of the states would be pretty much moot.

Or, the amendment process could rise out of something called a Convention of the States. That's when two-thirds of states agree to call a constitutional convention. That's allowed under Article V of the Constitution. That article has been around since the document became the supreme law of the land and back when important men wore powdered wigs.

But none of the 27 amendments to the Constitution came about a result of such a convention. If birthright citizenship were to be the exception, three-quarters of the states would still need to ratify the amendment.

No matter how this all plays out, it would appear it's going to take some time. Probably more than enough time for the state to adjust its birth certificates if it comes down to that.