Following his controversial executive order that forbade travel from nations with a majority of Muslims as soon as he took office in 2017, Donald Trump caused turmoil, confusion, and a flurry of lawsuits that ultimately reached the Supreme Court.
He has promised to use a similar approach on another divisive policy proposal—ending birthright citizenship—should he win the election in November.
In a May 2018 campaign video, Trump reiterated his demand to abolish the long-standing constitutional right and declared that on day one of his presidency, he would sign an executive order guaranteeing that children born to parents without legal status in the country would not be regarded as citizens.
In the video, Trump claimed, “The United States is one of the few nations in the world that declares that future citizens of their parents’ children automatically become citizens the moment they set foot on our territory,” even if neither parent is a citizen or even if they are in the nation legally.
The 14th Amendment to the Constitution, which declares that “Citizens of the United States are all people who were born or naturalized there and are under its authority,” has traditionally been interpreted as requiring birthright citizenship. The wording was included to the post-Civil War constitutional amendment to guarantee the citizenship of Black former slaves and their offspring.
Legal experts of all ideological persuasions usually agree that the statement is self-explanatory, but that hasn’t stopped some opponents of immigration from advocating for a different reading.
Omar Jadwat, an attorney with the American Civil Liberties Union who was also involved in the challenge to the travel ban, stated that litigation was inevitable.
He went on, “It’s right up against the 14th Amendment.” “It would basically be an attempt to undermine a fundamental constitutional protection that has played a significant role in our nation.”
Despite the fact that the Supreme Court eventually upheld a diluted version of Trump’s travel ban and deferred to the president’s authority on matters of national security, even proponents of birthright citizenship acknowledge that Trump’s plan would face an extremely difficult road ahead.
“If the president were to take this step, the Supreme Court might very well rule against him,” said Mark Krikorian, the executive director of the Center for Immigration Studies, an organization that is in favor of the proposal.
He continued, “If Trump loses that case, there’s no question about what has to happen next: something has to be done to begin the arduous process of changing the Constitution.”
A representative for the Trump campaign pointed to the former president’s first announcement in lieu of commenting on the proposal.
In order for a child to obtain birthright citizenship under Trump’s proposal, at least one parent would have to be a citizen or lawful resident. In his video, he made it clear that the regulation would not be applied retrospectively.
According to Trump, the order will also deal with “birth tourism,” a term coined by Republicans to describe the practice of people traveling to the United States at the conclusion of a pregnancy to guarantee that the kid is born a citizen of the United States.
It’s not clear how many children are born in the United States each year to parents who lack legal status or how many of them fall under Trump’s definition of “birth tourists.”
According to earlier estimates from Krikorian’s group, there may be as many as 400,000 births annually to parents without legal status and thousands of births due to birth tourism.
An immigrant rights organization called the American Immigration Council stated that although it does not have precise figures, there are currently an estimated 3.7 million children born in the United States who have at least one undocumented parent; this figure is based on statistics from the U.S. census.
The government organization that deals with citizenship matters, U.S. Citizenship and Immigration Services, did not respond to a request for comment.
When he originally entered the presidential race in 2015, Trump made a vow to abolish birthright citizenship, which he brought up once more in 2018. He did not, however, issue any executive orders.
Republican colleague Speaker of the House Paul Ryan rejected the notion at the time, stating, “You can’t do something like this via executive order.”
Trump’s promise notwithstanding, the proposal to terminate birthright citizenship is not addressed in the Republican platform for 2024, which has a chapter headed “Seal the Border and Stop the Migrant Invasion.”
The platform does contain wording committing to “end chain migration” and “prioritize merit-based immigration,” which is a term used to describe those who hold U.S. citizenship but use their status to facilitate the entry of other family members into the nation.
During the first Trump administration, Ken Cuccinelli, a top Department of Homeland Security official, stated that the idea is “appropriate and manageable from a policy perspective,” but he did not address any additional queries about how it might be legally carried out.
The Republican Heritage Foundation published Project 2025, a roadmap for a potential second Trump administration, and Cuccinelli produced the section on immigration-related matters. Birthright citizenship was not mentioned in his portion.
“Mythology from history”
In his introduction video, Trump criticized birthright citizenship, saying, “Numerous academics have explained that the current policy is founded on a historical lie and a deliberate misreading of the law by proponents of open borders.”
Not many individuals concur with that evaluation.
Advocates against immigration have developed a legal case based on the 14th Amendment’s provision granting birthright citizenship to individuals who are “subject to the jurisdiction” of the United States.
The language used to oppose birthright citizenship is that it denies citizenship to anyone whose parents are not lawfully present in the nation.
According to Christopher Hajec, an attorney with the Immigration Reform Law Institute, another organization opposed to immigration, “It is difficult to argue that illegal aliens are protected by the US government.”
However, the majority of legal experts argue that the jurisdiction language only applies to non-U.S. law-bound parties, such as foreign diplomats.
That’s even the opinion of James Ho, a conservative attorney chosen by Trump to the 5th U.S. Circuit Court of Appeals in New Orleans, where he has established himself as a judicial firebrand.
In 2009, he stated in an article that “most U.S.-born children of aliens, including illegal aliens,” are covered by the citizenship clause of the Fourteenth Amendment.
According to Ho, being under U.S. jurisdiction simply entails being subject to U.S. laws. “Of course, compliance is not contingent on one’s immigration status,” he continued.
The one case that is usually brought up in any discussion of the matter implies that it was thought that anybody born in the United States had citizenship, regardless of their parent’s status. The Supreme Court has never specifically addressed the matter.
The court decided in United States v. Wong Kim Ark (1898) that a man born in San Francisco to Chinese parents was a citizen of the United States.
Critics of birthright citizenship contend that because the parents in that case had been admitted legitimately, the decision did not address the question of whether the children of illegal immigrants are citizens of the United States.
Though they acknowledge that the reasoning can be confusing, they actually propose that the decision presumes that the offspring of illegal immigrants do not possess citizenship.
Hajec stated, “You really have to work it out.” “The argument is quite intricate.”
The effects may be felt right away if Trump carried out his promise to sign an executive order on the first day.
According to the Trump campaign, the president will direct the Social Security Administration to deny new babies a Social Security number if their parents cannot provide documentation of their immigration status. He would give the State Department similar directives about passports.
Though they acknowledge that the reasoning can be confusing, they actually propose that the decision presumes that the offspring of illegal immigrants do not possess citizenship.
Hajec stated, “You really have to work it out.” “The argument is quite intricate.”
The effects may be felt right away if Trump carried out his promise to sign an executive order on the first day.
According to the Trump campaign, the president will direct the Social Security Administration to deny new babies a Social Security number if their parents cannot provide documentation of their immigration status. He would give the State Department similar directives about passports.
Before providing immigrants with a Social Security number, the Social Security Administration must confirm their immigration status with the Department of Homeland Security, according to a spokesman for the department.
Right now, all that is required to get a passport or Social Security number is a U.S. birth certificate.
According to Emma Winger, an attorney with the American Immigration Council, Trump’s proposal would have an impact on any kid born in the country since it would require each parent to go through an extra bureaucratic process to make sure their child is registered as a citizen.
“Everyone is dependent on the fact that they only need to present proof of birth if they were born here,” the woman stated. “That would be a significant change.”