Neal Katyal to Trump: No way, no how you can upend 14th amendment through executive order

Neal Katyal; photo credit: Aspen Institute/YouTube

The Indian American lawyer, in a joint oped with George Conway, says such an executive order would be unconstitutional.

In an oped coauthored with George T. Conway III, the husband of White House counselor Kellyanne Conway, prominent Indian American lawyer Neal Katyal argues that President Trump’s claim that he can end the 14th amendment, which guarantees “birthright citizenship,” through an executive order is unconstitutional.

“Such a move would be unconstitutional and would certainly be challenged,” they wrote in the Washington Post. And the challengers would undoubtedly win.

READ: AAJC honors Indian American Neal Katyal with ‘The American Courage Award 2017’ (October 6, 2017)

Trump, who riled against birthright citizenship for the children of undocumented immigrant parents during the 2016 presidential election campaign, told Axios in an interview on Tuesday that he can and will end the practice through an executive order.

But Katyal, a former acting solicitor general of the United States, and Conway, a partner at Wachtell, Lipton, Rosen & Katz, argue that “ 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.”

READ: Hawaii court ruling against travel ban another feather in Indian American Neal Katyal’s cap (March 16, 2017)

The two legal luminaries point out that Trump’s proposal also “suffers from another infirmity”: “[It] exceeds the scope of his authority. Our Constitution could not be clearer that it is Congress, not the president, who is in the driver’s seat when it comes to immigration. Congress has specific powers over immigration in Article I; the president, none whatsoever, except as Congress has given to him by statute. And Congress has already spoken. In 1952, Congress declared, “The following shall be nationals and citizens of the United States at birth . . . a person born in the United States, and subject to the jurisdiction thereof.”

READ: Five Indian Americans on Politico 50 list of 2017 (September 5, 2017)

Katyal and Conway conclude by stating that the fact that the two of them are on the same page on the issue — despite their many 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.”

Interestingly, Kellyanne Conway had told Fox News on Tuesday that Trump has the authority to end the birthright citizenship.

George Conway, a reputed conservative lawyer, has been one of the most vocal critics of Trump on the Republican side.

The Chicago-born Katyal, who is a partner at Hogan Lovells in Washington, DC, has been on the forefront of many legal battles against the Trump administration. He was one of the first lawyers to challenge Trump’s so-called “Muslim travel ban” in court — on behalf of represented the state of Hawaii.

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