Tim Scott says presidents can't end birthright citizenship for children of undocumented immigrants

Yuma, Arizona — Republican White House hopeful Sen. Tim Scott of South Carolina on Friday questioned the legality of campaign promises made by former President Donald Trump and Florida Gov. Ron DeSantis to end birthright citizenship for the children of immigrants living in the U.S. unlawfully.

Asked whether he would join Trump and DeSantis in pledging to revoke birthright citizenship through an executive action if elected president, Scott said he does not believe presidents can do so unilaterally, echoing legal scholars who believe the change would require an amendment to the U.S. Constitution.

"I think the Congress would have to act. The president cannot do that by himself or herself outright," Scott told CBS News after a roundtable with community leaders in Yuma, Arizona, an area along the U.S.-Mexico border that has seen record levels of migrant crossings in recent years.

Asked if he thinks Trump and DeSantis are making promises that they would not have the legal authority to keep, Scott responded, "Yeah, I don't know how you do that without addressing the constitutional challenges."

Under a decades-long interpretation of the Constitution, children born on American soil are automatically granted U.S. citizenship, even if their parents are not themselves citizens or legally present in the country. Immigration hard-liners have long criticized the policy, saying it encourages parents to come to the U.S. unlawfully and then benefit from the benefits available to their U.S.-born children.

In May, Trump promised to issue an executive order to challenge birthright citizenship on his first day back at the White House if he defeats President Biden, a Democrat. Trump floated the move during his time in office, but never took action. In June, DeSantis, who has touted his recent signing of a strict state immigration law on the campaign trail, also pledged to end birthright citizenship.

Any action to upend birthright citizenship would all but certain face legal challenges, since the 14th Amendment of the Constitution decrees that "persons born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside." 

Amending the Constitution must be proposed by a supermajority in Congress or a constitutional convention convened by two-thirds of all states. It then requires ratification by three-fourths of the states.

Scott on Friday became the latest Republican candidate to visit the U.S.-Mexico border, joining DeSantis and Nikki Haley, former ambassador to the United Nations. Like Republican lawmakers in Congress, GOP White House contenders have made immigration a central component of their campaigns, frequently criticizing how the Biden administration has handled the unprecedented levels of migration recorded along the southern border over the past two years. 

The GOP presidential candidates have largely relied on Trump's immigration playbook, vowing to restore many of his administration's hardline, and often controversial, border policies, including a program that required migrants to wait in Mexico while their asylum requests were reviewed. 

Scott on Friday echoed that criticism, blaming the Biden administration for the record levels of unlawful border crossings in recent years. He promised to deploy additional border agents and immigration judges to review asylum cases if elected, and to end a Biden administration policy of processing migrants at ports of entry along the southern border if they secure an appointment through a phone app known as CBP One. 

"If I was president of the United States, we would delete the app," Scott said. "Watching our border be insecure, unsafe and wide open is a problem that's colossal."

The Biden administration has argued it has sought to manage migrant crossings in a humane way. The record levels of illegal border entries in recent years, it has said, have been fueled by a mass displacement crisis in Latin America that has seen millions of people flee crisis-stricken countries like Cuba, Haiti, Nicaragua and Venezuela.

The administration has also said a strategy it implemented earlier this year is successfully reducing unlawful migration. The strategy relies on programs, such as the CBP One app process, that allow migrants to enter the U.S. legally, and stricter asylum rules for those who enter the country illegally. 

While those asylum restrictions have been challenged by migrant advocates, an appeals court on Thursday allowed the administration to continue them while it reviews an appeal of a lower court order that declared them to be in violation of the country's legal obligations to refugees.

Illegal border crossings dropped to the lowest level in two years in June, but they have increased significantly in recent weeks, despite the extreme and sweltering temperatures in the southern U.S., preliminary Border Patrol figures show.

In:
• Immigration
• Tim Scott
• Donald Trump
• Ron DeSantis

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

Twitter