Beginning in 2018, President Donald Trump voiced support for ending birthright citizenship.
Following the 2024 election results, Trump has made several additional public comments about ending birthright citizenship.
Or at least redefine it.
This poses the question: “what is birthright citizenship and can Trump end it?”
What is Birthright Citizenship?
Following the American Civil War, Congress ratified the 13th, 14th and 15th Amendment to the U.S. Constitution. Specifically, the 14th Amendment, which was ratified in 1868, was enacted in part to ensure that former slaves and their descendants, who were part of the Confederacy, would be recognized as U.S. citizens. The 14th Amendment, with regards to citizenship, states the following:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”
In plain language, this means that anybody who is born within the United States (with very few exceptions) are natural born citizens regardless of their parents’ citizenship or legal status. As a result, even if the parents are neither U.S. citizens, lawful permanent residents or have no legal status, if their child is born in the United States, they are U.S. citizens and are entitled to all of the rights and privileges of citizenship, including petitioning family members for immigrant visas once the U.S. citizen child turns 21 years old.
Since becoming part of the U.S. Constitution, there have been a few cases which were decided by the U.S. Supreme Court in interpreting birthright citizenship. One of these cases is United States vs. Wong Kim Ark which involved a child born in San Francisco to Chinese immigrant parents. During this time, the Chinese Exclusion Act of 1882, which prohibited Chinese laborers from entering the United States and Chinese immigrants from naturalizing as U.S. citizens, was still in effect.
While the U.S. government argued that Wong Kim Ark was not a U.S. citizen because his Chinese immigrant parents were excluded from becoming naturalized citizens and were thus not “subject to the jurisdiction of the United States” within the meaning of the 14th Amendment, the Supreme Court disagreed. The Court ruled that despite the fact that Wong Kim Ark’s parents were not able to naturalize, he was nonetheless a U.S. citizen because he was born in the United States.
Can Trump End or Redefine Birthright Citizenship and How Could He Do It?
For over 150 years, the 14th Amendment has applied universally to anybody born in the United States. This not only includes the fifty (50) states but also those born in the federal territories of Puerto Rico, Guam and the Commonwealth of Northern Marina Islands. It also applies to those born abroad to a U.S. citizen parent.
If Trump chooses to challenge birthright citizenship based on the parents’ legal status, it would certainly generate extreme litigation and the decision may ultimately rest in the hands of the Supreme Court.
The first likely possibility would be for Trump to issue an Executive Order (“EO”) placing a more narrowly defined definition of the 14th Amendment. Immediately after the EO is issued, litigation would start which would be decided by a Federal Court Judge. It is almost certain that a Federal Court Judge would either issue an injunction against the EO or strike it down entirely on the grounds that the EO is unconstitutional. From there, Trump would likely appeal the Federal Court Judge’s decision to the Federal Circuit Court where the merits of the case would be heard again. Regardless if the Court agrees with Trump or finds that the EO oversteps executive authority, the issue may be brought to the Supreme Court who will ultimately decide its fate.
Another option that Trump may utilize to lobby to pass a constitutional amendment redefining the 14th Amendment. While this is legally possible, this may prove to be even more difficult than through federal litigation because it will first require two-thirds of both the House of Representatives and the Senate to approve the new amendment. After that, three-fourths of all state legislatures (38 out of 50 states) would also need to ratify the amendment. Considering how divided Congress with the Republican party controlling the House of Representatives by five (5) members (220-215) and controlling the Senate by three (3) members (53-47), it is unlikely that such a measure would pass the first part of a constitutional amendment redefining what it means to be “subject to the jurisdiction of the United States.”
Regardless of what, if any avenue Trump, chooses to take with birthright citizenship, ending or redefining the constitutional right will not be resolved with something as simple as an EO.
For more information on birthright citizenship, contact us at info@enterlinepartners.com.
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Copyright 2024. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline & Partners only.
