Can President Trump End Birthright Citizenship?

Prior to the midterm elections, President Trump announced he was planning an executive order to end birthright citizenship. Jus soli (aka birthright citizenship) refers to a person’s acquisition of United States citizenship by virtue of being born in the physical territory of a state (Latin for “right of the soil”). It’s controversial in the context of non-immigrant births on U.S. soil. Trump has called it “the biggest magnet for illegal immigration.” “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” he told the press in October. “It’s ridiculous. It’s ridiculous. And it has to end.” But can Trump really end birthright citizenship with an executive order?

In fact, we are NOT the only country in the world that grant automatic birthright citizenship. A study in 2010 found that at least 30 of the world’s 194 countries grant citizenship at birth to the children of undocumented foreign residents, although definitive information was not available from 19 countries. See Jon Feere, “Birthright Citizenship in the United States: A Global Comparison,” Center for Immigration Studies (2010). These countries include Canada and Mexico, among others.

In the U.S., the policy on birthright citizenship stems from an expanded reading of the 14th Amendment which says “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 amendment was enacted in 1868, three years after the Civil War ended, with the purpose of expanding citizenship to African Americans by overturning Supreme Court decision ruling that black people were not citizens under the Constitution.

In October, referencing his ability to end birthright citizenship, Trump said, “It was always told to me that you needed a constitutional amendment. Guess what? You don’t.” Is he right? Reasonable minds disagree on the matter.

Many legal scholars have raised doubts that the President has the authority to change the Constitution with an executive order. “Nobody would ever claim that a formal executive order could be a way around the amendment process of Article V,” said Jonathan Gienapp, assistant professor of history at Stanford University who specializes in the early United States and the creation of the Constitution. “Article V creates barriers that are so high that amendments are almost impossible,” he said. Amendments to the Constitution generally cannot be overridden by presidential action — they can be changed or undone only by overwhelming majorities in Congress or the states, with a two-thirds vote of both houses of Congress or through a constitutional convention called for by two-thirds of state legislatures.

Should Trump pursue his executive order, he will likely face lawsuits over the requirements of Article V, which expressly outline what needs to be done to amend the Constitution. However, the U.S.’s common law legal system is based on precedent, and since no president has ever attempted to amend the Constitution by executive order, no court has ever ruled in favor or against the action. Consequently, if the President does take this type of action, a definitive answer would have to come from the U.S. courts on whether the executive order is legal.

Some conservatives have long made the argument that the 14th Amendment was meant to apply only to citizens and legal permanent residents, not immigrants who are present in the country without authorization. In response to Trump’s comments, Vice-President Mike Pence stated, “We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether the language of the 14th Amendment — ‘subject to the jurisdiction thereof’ — applies specifically to people who are in the country illegally.” The question for U.S. courts will thus be whether persons in the country illegally are subject to the jurisdiction of the United States.

Other Republicans themselves have pushed back on Trump’s claims. Regarding Trump’s ability to end birthright citizenship via executive order, House Speaker Paul D. Ryan of Wisconsin said, “you obviously cannot do that… I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.” Similarly, Bob Hugin, former Republican candidate for Senate in New Jersey posted on his Twitter account, “The President is wrong to end #BirthrightCitizenship. We’re a nation of immigrants made better by the diversity of its people, especially in NJ. We need compassionate comprehensive immigration reform now.”

It remains unclear how serious the President was about pursuing the executive order. Talk of the order has ceased since the midterm elections. Whether this was the President’s attempt to amp up his voting block or whether an unprecedented legal battle is truly in the works remains to be seen. Nevertheless, any action on birthright citizenship is almost certain to bring a court battle, showing once again that the U.S. government was meant to withstand transitory political sentiments.

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