The Law Q&A | What can executive orders do?

The Law Q&A | What can executive orders do?

Recently, the 45th president of the United States announced he may sign an executive order declaring persons born in the U.S. to undocumented non-U.S. citizens shall not be considered U.S. citizens.

What is a presidential executive order and how do they work?It's an order issued by the president and has the force of law, but each order must be rooted in a specific power given in the Constitution or authorized by Congress. When such orders exceed the authority under either source, or run contrary to either source, federal courts have blocked them when challenged.Presidents since George Washington have issued thousands of such orders. They are typically used to implement the details in running federal agencies, or in furthering congressionally enacted policies.

The most famous executive order is the Emancipation Proclamation issued by Abraham Lincoln during the Civil War. It declared slaves then controlled by rebel forces to be free. Such order was in furtherance of the executive branch's power in enforcing the laws of the nation — in this case by repressing armed rebellion. Harry Truman issued an executive order racially integrating the armed forces, which presaged the Supreme Court's ruling six years later which struck down racial segregation in civilian institutions.

Franklin Roosevelt's executive order in 1937 appointing a number of Supreme Court justices in excess of the number set by Congress was found unenforceable as it was contrary to Congress' power to set the number.

The most notorious one was another Franklin Roosevelt order requiring that American citizens of Japanese ancestry residing in Western states be held in prison camps during World War II. That order was ruled constitutional at the time, but it is universally castigated today as overtly racist.If POTUS 45's proposed citizenship declaration order is enacted, it will undoubtedly be challenged as contrary to the Constitution. The opening sentence of the Constitution's 14th Amendment states, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."POTUS 45 claims the president is given wide latitude by Congress in controlling immigration. True.

POTUS 45 claims that such 14th Amendment birthright does not extend to children born of undocumented immigrants. False.

The U.S. Supreme Court has ruled that persons born within the boundaries of the U.S. are protected by the 14th Amendment, even if born from foreign nationals. It has further ruled the 14th Amendment gives protection to those persons within the boundaries of the U.S. whether they entered lawfully or not.If the concern is that creating "anchor babies" is a nefarious method by undocumented aliens to skirt possible deportation of them or their newborn, and therefore the child should still be subject to deportation, then everyone born in the U.S. is subject to deportation. For we are all anchor babies. Somewhere in the chain of our anchor was an ancestor who came from another continent without documentation. It's just that some of us have more links in our chain than others.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation.

You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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