One thing that seems clear to me is that an Executive Order isn't adequate for this action. Andy McCarthy gives a good account of why it wouldn't be:
The problem as I see it is twofold. First, the legal landscape is not limited to the 14th Amendment. Congress has enacted a statute, Section 1401 of the immigration and naturalization laws (Title 8, U.S. Code). In pertinent part, it appears merely to codify in statutory law what the 14th Amendment says: included among U.S. citizens is any “person born in the United States, and subject to the jurisdiction thereof.” But that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then).I think that's roughly right on both points, although I'd suggest that the 1952 statute can't override the 1868 Constitutional Amendment's meaning -- otherwise we could by statute redefine any Constitutional term. Congress can't re-issue the Third Amendment by statute with a legislative statement to the effect that "quartering shall only mean permanent residence of troops in private homes, i.e., greater than ten years' duration," and thereby remove the Third's prohibition. Thus, the 1952 understanding can only alter the 1868 understanding in a fairly limited way; Congress might broaden the Third's protections, as by forbidding 'quartering' within 100 yards of a private home, but not limit it. Here, Congress might not be able to alter the 1868 understanding at all by mere statute.
Secondly, even assuming the meaning was the same, Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship.
However, SCOTUS might find that the 1868 understanding wasn't so obvious that a later Congress acting in accord with a later President might not define it more clearly. If so, then what the Congress of 1952 can do, the Congress of 2018 or 2019 can also do. Sen. Graham is proposing to get the ball rolling on that. If the Republican Congress hands Trump a bill that reinterprets this clause formally, and he signs it into law, that would do whatever the 1952 law did to define the terms.
That might be nothing at all; SCOTUS may well say that mere legislation can't alter an amendment's terms, and that it feels that there is a clear enough record of intent from 1868 to apply. That's originalism, which many of us have long argued for as a judicial philosophy. You have to take the good and the bad of that. Birthright citizenship may simply be something we're stuck with pending a new Constitutional convention. Perhaps not, especially if they find the 1868 language unclear or in need of further exposition from the legislature. I think this expresses the range of constitutional possibilities.
