Former President Donald Trump rolled out some new policy proposals this week as he shifts gears heading into the heat of the 2024 GOP primary. One of them that was obtained by Breitbart last night will probably raise a few eyebrows. Trump is promising “on day one” to sign an executive order ending birthright citizenship and putting restrictions on birth tourism, similar to proposals he made prior to his first run for the White House. These are both serious issues that we’ve addressed here in past years because they allow people to game the system and encourage illegal immigration. But are these the sort of things that can be simply waived away by an executive order? Could they even be done without a constitutional amendment? We’ll dig into those questions in a moment.

Former President Donald Trump, the GOP frontrunner for president in 2024, rolled out a new policy pledge on Tuesday in which he promised if elected he would sign an executive order on day one of his second term in office effectively ending birthright citizenship for illegal aliens and so-called “birth tourism.”

The policy proposal, contained in one of his Agenda 47 videos his campaign released, was obtained exclusively by Breitbart News ahead of its public release.

As important of an issue as this may be, it’s a bit offputting to hear Trump talking about “day one” executive orders already. I would hope that we’ve learned some lessons from Joe Biden’s record-setting cavalcade of executive orders that he signed within hours and days of taking office. The cumulative effect on the nation has been nothing short of disastrous, and that’s particularly true on the issue of immigration. I would regretfully agree that a new president may have little choice other than issuing EOs to undo some of the bad policies put in place by their predecessor, and that’s become something of a ritual over the past couple of decades. But issuing entirely new policies in that fashion should be discouraged.

With that said, ending birthright citizenship with the stroke of a pen seems to be legally problematic if not outright unconstitutional. Trump claims that the acceptance of the concept of birthright citizenship is, “based on a historical myth and a willful misinterpretation of the law.” I did a bit of searching this morning and was unable to find a cogent legal theory backing up that claim, though many arguments have been attempted.

The basis for the theory of birthright citizenship is actually found in the opening paragraph of the Fourteenth Amendment. “All persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. Some have attempted to claim that illegal aliens are not truly “subject to the jurisdiction” of the United States. But the counterargument to that points out that if they were not subject to American jurisdiction, we wouldn’t be able to detain, prosecute, or deport them.

Keep in mind that Trump has been saying this since 2015, though back then he said it would take an act of Congress to make the change. But no such law has ever been attempted and the Supreme Court has never taken up the question. The majority of constitutional scholars seem to agree that it would require a constitutional amendment. And as much as I’m a fan of Trump’s proposal in theory, I sincerely doubt it would survive a challenge.

Then there is Trump’s idea about birthright tourism. His current proposal “would require that at least one parent be either a U.S. citizen or legally in the country” to confer immediate citizenship to the child. I’m reminded of one of the hosts of a popular podcast I follow who lives in Australia. He provided a running description of the complex and expensive efforts he and his wife went through while she was pregnant to get her to Hawaii to give birth in a hospital there. They didn’t seem to have any direct links to the United States and did it specifically so their son would have dual citizenship, which he now has.

But both the father and the mother had legal visas allowing them to visit the United States and they filled out all of the standard paperwork to do so. Technically speaking, they were “legally in the country” despite not being citizens. So even under Trump’s own rules, it seems as if we couldn’t deny their son’s citizenship. Birthright tourism may be understandably offputting to some, but we constructed a national system where such things are possible.

These are both interesting ideas that merit discussion on the campaign trail. But given the daunting nature of any attempt to amend the Constitution these days, I think we’re talking about campaign highlight reels and flights of fancy here.