Heritage Foundation founder Ed Feulner is publicly backing President Trump’s claims that he can, by executive order, eliminate the birthright citizenship guarantee of the 14th Amendment to the Constitution. In an op-ed published last Monday by the Washington Times (and reprinted on Friday by The Daily Signal, the Heritage Foundation’s “news platform”) Fuelner says if Trump signed such an order, “he’d be enforcing existing law.”
“President Trump,” wrote Feulner, “should be commended for trying to bring current understanding back in line with the original intent of the framers.”
For the record, this interpretation of the Constitution and the idea that Trump can amend the Constitution by executive order are not shared by most scholars. Even many conservative political leaders and legal scholars disagree. Among those who publicly disputed Trump’s pre-election assertion were outgoing House Speaker Paul Ryan, right-wing law professor John Yoo, and Fox News legal commentator Andrew Napolitano.
Last fall, Feulner argued that Congress could and should eliminate birthright citizenship—which he called “just another form of amnesty that has been going on under the radar since 1898—by simply passing a resolution.
In his recent column, Feulner acknowledged that even some conservatives who share his opposition to birthright citizenship, like National Review’s Andrew McCarthy, believe it’s a job for Congress and don’t think the president can eliminate it with the stroke of a pen.
According to McCarthy, a president cannot “unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.”
But Feulner countered by quoting the Heritage Foundation’s Hans von Spakovsky—who served on the Trump administration’s short-lived and much-maligned voting commission that was designed to create justification for voter suppression efforts—claiming that if the widely shared understanding of the law is wrong, then “the president as the chief law-enforcement officer can, and indeed has an obligation, to direct the federal government to begin applying and enforcing it correctly.” That’s not exactly how conservatives talked about executive power when Barack Obama was president.
Rep. Steve King has introduced legislation purporting to repeal birthright citizenship, and Sen. Lindsey Graham has said he plans to do the same thing. Such a move would itself be an attempted end-run around the process of amending the Constitution, one which Napolitano says would be just as unconstitutional as doing so by executive order.
Among those who have argued that Congress can and should eliminate birthright citizenship are Kris Kobach—recently defeated in his bid to become governor of Kansas—and right-wing law professor John Eastman. Eastman also defends the idea that Trump could do so by executive order. According to the student newspaper at Chapman University, where he teaches, Eastman says “he’s one of the legal experts upon whose research President Donald Trump is basing his recent decision to potentially end birthright citizenship.”
In June, Jonathan Mahler reported in the New York Times Magazine that the Heritage Foundation was “furthering its right-wing agenda” by placing “countless” staffers and allies in powerful administration positions:
“Feulner’s first law is people are policy,” Ed Feulner, Heritage’s founder and former president, told me recently. Feulner was the head of domestic policy for the Trump transition, charting the direction of the Environmental Protection Agency, the Department of Agriculture and several other agencies.
