President Trump says he’ll use an executive action to overturn birthright citizenship for the children of undocumented immigrants, and the GOP response has been muted.
Apart from a few critics, including House Speaker Paul D. Ryan (R-Wis.), who stated “you obviously cannot do that,” Republican officials have largely either ignored the ploy or egged it on. Sen. Lindsey O. Graham (R-S.C.) cheered Trump and noted that he has been in favor of overturning birthright citizenship for years. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) suggested that it was an open question as to whether the 14th Amendment applied to undocumented immigrants, even though the Supreme Court has ruled that parents' statuses have no bearing on whether their children are automatically citizens upon birth on U.S. soil.
How far we’ve come from the days of “King Obama.”
Republicans for years decried President Barack Obama’s alleged overreach on executive actions, alleging that he effectively governed by fiat and ignored or rewrote the law. Now we have a president of the United States talking about effectively amending or at least clarifying the Constitution unilaterally, and the GOP can’t be bothered to raise much of an objection.
Chief among those criticizing Obama for his executive actions, of course, was Trump himself.
“Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?” Trump asked in a 2012 tweet.
This was an almost universal GOP talking point — up to and including suggesting Obama was trying to act like a “king.”
Then-New Jersey Gov. Chris Christie said, “He’s not a king, he’s not a dictator, he’s not allowed to do it himself.”
“Barack Obama is a king, not a president,” blared the headline of an opinion piece on Fox News’s website.
"He may think he’s king, he may declare he’s a king, but that’s not what he is under the Constitution,” then-Rep. Michele Bachmann (R-Minn.) said. Bachmann added at another point, “He has rewritten the Constitution for himself as a part of his effort to fundamentally transform the United States of America.”
Obama was frequently labeled “lawless” by Sen. Ted Cruz (R-Tex.) and others when he undertook perhaps his most controversial executive action: Offering deportation relief to the children of undocumented immigrants, a program known as Deferred Action for Childhood Arrivals, or DACA. John A. Boehner (R-Ohio), the House speaker at the time, said Obama was acting like a “king or emperor.” Boehner said Republicans “will not stand idle as the president undermines the rule of law in our country and places lives at risk."
Whether Obama went too far with executive actions is a valid question. His quantity was hardly exceptional, but it’s really the content that matters. DACA did indeed test the bounds of the law — as Obama himself had admitted before he did it — and it got hung up in court before Trump voided it with one of his own executive actions.
Grassley was stunned at Obama’s move, delivering a lengthy floor statement that mentioned the Constitution 24 times. “When talking about immigration policy, the president has acknowledged that he ‘isn’t a King,’ ” Grassley said. “He shouldn’t act like one.”
But Trump’s proposal takes things to a another level. While Obama was questionably trying to act within laws passed by Congress, Trump is arguably trying to change the Constitution in a way even Ryan says is flatly unconstitutional. The threshold for constitutional amendments — two-thirds majorities in Congress and three-fourths of states — is considerably higher for a reason: Because it impacts the very structure of our government. And the Supreme Court has been pretty clear that the 14th Amendment applies to everyone born here. This could very easily be construed as a president overturning Supreme Court precedent.
Even people who favor getting rid of birthright citizenship for the children of illegal immigrants tend to agree it’s not possible without a constitutional amendment or, at the very least, an act of Congress. Doing this via executive action, which is not supposed to create new laws but instead work within existing ones, is not a serious proposal. And it’s not even the first time Trump has talked about getting around the Constitution via executive action. Earlier this year, he was supposedly going to somehow institute a line-item veto, even though the Supreme Court had ruled that unconstitutional in the 1990s.
Hypocrisy is nothing new in politics. Republicans are big on fiscal responsibility when there is a Democrat in the White House and considerably looser with the purse strings when a Republican is in charge. There are often ways to talk your way out of how a Republican president doing something similar to what a Democratic president did is actually different.
In this case, though, Republicans know that what Trump just proposed is beyond anything Obama attempted, and the fact that more of them aren’t saying what Ryan said is pretty hypocritical.