Donald Trump has announced plans to end birthright citizenship as part of his proposed immigration policies when he assumes the presidency on January 20. Here’s a breakdown of what U.S. birthright citizenship entails and whether Trump has the legal authority to eliminate it.
What is birthright citizenship?
Under the Citizenship Clause of the 14th Amendment, any person born in the United States is granted citizenship at birth. The amendment, adopted in 1868, 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.” The Immigration and Nationality Act of 1952 also codifies similar language.
Currently, children born in the U.S. to parents who are in the country illegally are granted citizenship. Donald Trump has raised concerns about “birth tourism,” where foreign nationals give birth in the U.S. to secure citizenship for their offspring.
Are there exceptions?
Yes. Children born in the U.S. to foreign diplomats with diplomatic immunity are not considered citizens because they are not subject to U.S. jurisdiction.
The Supreme Court has not ruled on whether the Citizenship Clause applies to U.S.-born children of individuals in the U.S. illegally. However, two key cases provide historical context:
- United States v. Wong Kim Ark (1898): The Court ruled that a child born in the U.S. to lawful Chinese immigrants was a citizen by birth, despite restrictive immigration laws.
- Elk v. Wilkins (1884): The Court determined that a Native American born into a tribe was not a citizen because tribes were considered separate sovereign entities. Congress later granted citizenship to Native Americans in 1924.
Opposition to birthright citizenship
Critics argue that the phrase “subject to the jurisdiction thereof” excludes individuals in the U.S. illegally and, by extension, their children. Some Republican lawmakers have introduced legislation to limit birthright citizenship. However, most legal scholars contend that this interpretation is flawed as individuals in the U.S. illegally are still subject to its laws.
Can Trump end birthright citizenship through an executive order?
The Constitution grants Congress the authority to regulate citizenship. No president has successfully altered these rules through an executive order. Legal experts believe any such attempt by Trump would face immediate court challenges.
An executive order might aim to restrict citizenship by requiring at least one parent to be a U.S. citizen, permanent resident, or military member. Such a directive would likely prompt judicial intervention, potentially leading the Supreme Court to rule on the issue. A constitutional amendment requiring extensive legislative and state approval would be necessary to permanently alter birthright citizenship.
Ending birthright citizenship through executive action would likely be blocked by courts and face significant legal hurdles. Constitutional amendments, the only definitive means of altering birthright citizenship, are both rare and complex, requiring broad bipartisan support and extensive state ratification.