A week before the crucial midterm elections that may end Republican control of Congress, President Donald Trump has threatened to use an executive order to deny citizenship to children born in the United States whose parents are illegal immigrants. He can’t do it, but never mind. It is likely his now staunchly conservative Trump [Supreme] Court will do it for him.

Trump raised the issue with the hope that it would bring more of his followers to the polls next Tuesday. While  the president claims that his legal team advised him that an executive order was within his constitutional power on this matter, it’s difficult to find any other constitutional scholar who agrees with that view. They have universally condemned it.

Perhaps in Hitler’s Germany of the  1930s a ruling by decree was acceptable to democratically elected members of the Reichstag. But even in the most tumultuous times, American congresses have rejected the idea of surrendering their power to the president. And citizenship laws are a congressional prerogative, specifically provided for in both the constitution and the Fourteenth Amendment, which contains the clause that has created the problem.

Section 1 of the amendment begins: “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.” Section 5 authorizes congressional action to enforce this and other provisions of the amendment.

The critical phrase in question is “subject to the jurisdiction thereof.”

Those who uphold birthright citizenship for the children of illegal immigrants contend that illegals living in the United States are subject to the jurisdiction of this government. The parents in question must obey state  and federal laws, and that makes them “subject to the jurisdiction thereof.”

Opponents argue that while illegals may follow traffic laws as a matter of common sense, they are still citizens of the country they left. When necessary, they seek the intervention of the diplomatic corps from their home countries. The Mexican consulate has intervened on several occasions on behalf of their nationals living in the U. S.

Iowa congressman Steve King detailed in a 2015 column how Sen. Jacob Howard and several other members of congress, during the debate preceding passage of the amendment, clearly indicated that the citizenship clause was not intended to grant citizenship to “foreigners.” Conservatives, in interpreting the constitution, insist that “original intent” – what the framers meant – is essential in understanding what a clause that might be interpreted more than one way means. No congressman at the time the Fourteenth was debated interpreted it as giving citizenship to the children of illegal entrants into this country.

Despite references to several Supreme Court decision stretching back into the 19th century, the high court has never ruled specifically on citizenship for children of illegal entrants. Proponents of birthright citizenship always cite the Wong Kim Ark case, 1898, as definitive on the matter. Ark, the son born to Chinese parents who were legally settled, permanent residents of the U.S. but not citizens, was granted citizenship by the court – but his parents were not illegally here.

So, Trump won’t be able to ban birthright citizenship for children of illegals by executive order. But if Rep. King brings the issue to the Trump Court, with a solid majority of five conservatives for the first time in decades, the court can and very likely will end the practice. It doesn’t require an overturn of precedent since there is no precedent upholding such citizenship. All the Trump Court needs to do is follow the conservative reliance on original intent, citing Howard and his colleagues to show that the framers were opposed to citizenship for anchor babies. The vote will be 5-4.