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Abolishing birthright citizenship by deeming the 14th amendment never to have applied to children of illegal immigrants will create a lot of practical headaches because it means that there are a bunch of non-citizens with valid passports and social security cards, as well as a bunch of likely citizens who can't prove their citizenship (because nobody knows what their parents' immigration status was when they were born). These problems arise from the combination of no birthright citizenship and no citizen register - a situation that is currently unique to the UK (post-1983), Australia (post-1986) and New Zealand (post-2006).
In theory it blows up almost everyone's citizenship - unless you can trace your ancestry back to someone with a documented statutory claim to citizenship that does not rest on birth in the USA (such as naturalisation), there is technically the possibility that nobody in your family was ever a citizen (or a legal immigrant - people who were incorrectly believed to be citizens never filled out immigration paperwork, so they would have been illegal). Your parents' passport doesn't help, because reinterpreting the 14th amendment means that the a passport issued before the change is no longer proof of citizenship - the whole point is that the US has been issuing passports in error to anchor babies.
Doing this all by statute allows you to fix most of these problems - the simplest way to do this is by making the change prospective only (as the UK did when we abolished birthright citizenship in 1983 - and even so the only reason we don't have more practical problems with proof of citizenship is that the vast majority of British citizens have passports). You could also say that birth in the US to a parent born in the US grants citizenship regardless of the parent's status. (Most ius sanguinis countries do this).
An EO can tell the executive branch who to issue passports to, but it doesn't change who actually is a citizen. So it would leave much of the US operating in a legal grey area where their de facto citizenship derives from an executive order, not the law.
The very simple answer to this is that we grandfather all current citizens in. I think you're blowing this way out of proportion.
I think it would be better to pick a date to start at. If you said retroactive to 1924, it still wouldn’t affect most people as they could likely trace their family tree to someone born in the country prior to 1924.
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I agree. But that is easy to do by legislation and hard to do by executive order.
Surely he would be following Biden's example (re: the ERA).
Biden was trolling re. the ERA. I think Trump is serious about ending birthright citizenship, in the sense that he wants what he is doing to have actual consequences up to and including deportation for the people he is taking citizenship away from.
Having thought about this, I think the most likely plan is not to enforce the executive order (there will be a temporary injunction in place against it within days), and then to do things properly by legislation in the unlikely event that SCOTUS find that the Constitution does not protect birthright citizenship. This moves faster because you can start the (slow) litigation process immediately, whereas doing it by legislation means that the litigation doesn't start until the legislation passes Congress. And the litigation is the important part of this.
I don't think it was Biden, but that aside, how do you know?
Because if the person running the Biden WH was serious, they could have issued an executive order ordering the National Archivist to promulgate the amendment as ratified.
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