LEILA FADEL, HOST:
For more about the legal protections for birthright citizenship and what these executive orders actually do, we've called up Kim Wehle. She's a constitutional scholar and professor of law at the University of Baltimore. Kim, welcome back to the program.
KIM WEHLE: Great to be with you.
FADEL: I want to start by playing you something White House Deputy Chief of Staff Stephen Miller said in the Oval Office yesterday after President Trump signed the orders.
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STEPHEN MILLER: The 14th Amendment was passed exclusively in the aftermath of the Civil War so to ensure that the children of slaves would be citizens. It had no other meaning and purpose outside of that. And that's been clear, obviously, since the day that it was passed.
FADEL: Kim, is that true?
WEHLE: Well, this is an argument that was raised by the solicitor general, John Sauer, in detail in - before the Supreme Court, and it was rejected. So Stephen Miller's not a Supreme Court justice. This is this is an argument that is - should be - have been put to rest after the Supreme Court's decision in Trump v. Barbara.
FADEL: Now, the Supreme Court, as you mentioned, ruled on birthright citizenship in June, reaffirming, this is a right guaranteed by the Constitution. These executive orders, do they violate that court ruling?
WEHLE: On their face, yes, they do. This is a challenge to the authority of the Supreme Court, frankly. The court said, listen, this is about if you're born on U.S. soil. And it was affirmed in 1898 by the Supreme Court. The 14th Amendment says, and subject to the jurisdiction thereof, meaning that if you are subject to the jurisdiction of, you know, a foreign country because you're an ambassador and you have diplomatic immunity, for example, that doesn't fall within the plain language of the 14th Amendment, but saying now that, well, if you're born here pursuant to one of these birth tourism concepts, then that's an exception. That falls clearly outside the scope of what the Supreme Court in a 5-4 decision ruled this term.
FADEL: As you point out, there are narrow exemptions for birthright citizenship - being born to a foreign diplomat. Does the president have the power to expand them, as he seems to be claiming he's doing with these executive orders?
WEHLE: That's a clear no as well. The court made clear, there's no power by a president in an executive order to amend the Constitution. Justice Kavanaugh, in a concurring opinion, suggested that Congress might be able to make more exceptions, but he didn't get a majority. So that's not even the law. This is a case that really, frankly, I don't think should have gone to the Supreme Court to begin with. The justices in the majority claim to be textualists. The Constitution says all people. All means all. It's not a hard case. And Donald Trump is again trying to outmaneuver the Constitution and established Supreme Court precedent. And it's a challenge for this court that they've created a situation where he thinks it's OK to just, you know, tinker with the rule of law.
FADEL: Well, will there be an impact from these executive actions?
WEHLE: You know, there's already a regulation in place since 2020 that allows customs officials to basically deny visa entry for people on the suspicion that someone's here just to have a baby. That creates what's called a rebuttable presumption that then puts the obligation on the person to prove they're here for some other reason. So functionally, it's hard to see how this does anything other than create kind of a propaganda message and get people talking about whether it's legal. It's clearly not legal. And, of course, the issuance of birth certificates isn't something the federal government does. That's done on a state-by-state basis.
FADEL: So in your view, this is just about messaging, rather than actual impact?
WEHLE: You know, Donald Trump is really good at moving the goalposts. You know, this isn't one of those areas where it's even gray or unclear. This - he's done this with the law. He finds these parts of the law that haven't really been exhausted, and then he redefines them. This is something that's really established and clear. It's been established since the 14th Amendment, again, in Wong Kim Ark, 1898, and now our modern Supreme Court, a Trump-friendly court, has rejected his arguments. And so we all have to be careful about giving him any legitimacy around this. This is clearly unconstitutional, and I expect lower courts to, you know, immediately, if given the opportunity, with - plaintiff withstanding - immediately to declare them unconstitutional.
FADEL: So if these executive orders, as you say, are unconstitutional, what will be the grounds for challenging them if they go to court?
WEHLE: You just walk into court and say it violates, you know, the 14th Amendment as interpreted by the Supreme Court, now multiple times. Constitution's the boss of everyone, including the president of the United States. This president challenges that, and, unfortunately, too many people on the court have entertained that proposition, and it needs to be put to rest. He is not a king. He is subject to the rule of law, like everyone else in the nation.
FADEL: That's Kim Wehle, professor of law at the University of Baltimore. Thank you, Kim.
WEHLE: Great to be with you. Transcript provided by NPR, Copyright NPR.
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