Kellyanne Conway's Husband Says Trump Would 'Undoubtedly' Lose Legal Fight to End Birthright Citizenship

george conway
eorge T. Conway III, husband of White House Counselor to the President Kellyanne Conway, attends the 139th Easter Egg Roll on the South Lawn of the White House April 17, 2017 in Washington, D.C. Conway... Chip Somodevilla/Getty

Attorney George Conway, husband of White House counselor Kellyanne Conway, has hit out at President Donald Trump's claim he can end birthright citizenship in the U.S. with an executive order, calling the U.S. leader's proposal "unconstitutional" in a Washington Post op-ed he co-authored on Tuesday.

"Sometimes the Constitution's text is plain as day and bars what politicians seek to do," Conway and co-author Neal Katyal, a partner at Hogan Lovells and former acting U.S. solicitor general in the Obama administration, write in the op-ed.

That, the authors state, "is the case with President Trump's proposal to end 'birthright citizenship' through an executive order."

In their op-ed, Conway, who has emerged as a fierce critic of Trump despite being married to one of the president's closest allies, and Katyal join a string of experts who have asserted that the 14th Amendment to the Constitution would prevent Trump from carrying out his plans.

"At its core, birthright citizenship is what our 14th Amendment is all about, bridging the Declaration of Independence's promise that 'all men are created equal' with a constitutional commitment that all those born in the United States share in that equality," the pair write.

Ratified on July 9, 1868, after the American Civil War, the 14th Amendment was created with the aim of protecting the rights to American citizenship of freed slaves. In the decades since, however, it has played a defining role in many landmark Supreme Court decisions–and enshrined the right to citizenship of children born on U.S. soil, whether they are born to citizens of the country, non-citizens or undocumented immigrants.

"Birthright citizenship sprang from the ashes of the worst Supreme Court decision in U.S. history, Dred Scott v. Sandford, the 1857 decision that said that slaves, and the children of slaves, could not be citizens of the United States," Conway and Katyal state. "The blood of hundreds of thousands of Americans was shed to repudiate that idea."

But the amendment, the authors say, is "simple and clear" in its goal to ensure that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

"Both proponents and opponents of the language at the time knew exactly what it meant: Virtually anyone born in the United States is a citizen," they add.

As such, Conway and Katyal assert that any attempt by the president to take away the rights enshrined by the amendment would be met with legal challenges–and would, ultimately, fail.

"Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win," they assert.

Trump revealed that he planned to end birthright citizenship with an executive order in an excerpt of an interview with Axios, which is set to air on HBO on Sunday.

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits," Trump said in the interview. The president's statement was incorrect, however, with a number of countries, including the U.S.'s northern neighbor, Canada, providing similar rights.

Still, the president claimed: "It's ridiculous. And it has to end."

The U.S. leader said that while he had always been told that "you needed a constitutional amendment" to end birthright citizenship," Guess what? You don't."

"You can definitely do it with an act of Congress," Trump said. "But now they're saying I can just do it with an executive order."

"It'll happen," he said. "With an executive order."

Read more: Paul Ryan Slams Donald Trump's Plan to Eliminate Birthright Citizenship, Says 'You Obviously Cannot Do That'

However, Conway and Katyal say that is not the case, asserting: "He was wrong—a constitutional amendment would indeed be necessary to revoke birthright citizenship. But no matter what, an executive order could never suffice, notwithstanding the president's assertion."

Whoever the "they" informing the president that he can take away the birthright to infants born on U.S. soil are, "they have it wrong," the authors state.

"An executive order to reinterpret 'subject to the jurisdiction thereof' could never pass muster because, if the Constitution provides any leeway to decide the meaning of that phrase, it provides it to Congress, and not the president," they say.

Noting their political differences, Conway and Katyal say: "The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away."

Uncommon Knowledge

Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.

Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.

About the writer


Chantal Da Silva is Chief Correspondent at Newsweek, with a focus on immigration and human rights. She is a Canadian-British journalist whose work ... Read more

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