President-elect Donald Trump has declared his intention to eliminate birthright citizenship as part of his campaign commitments to tighten immigration policies and reshape the concept of American identity.
However, any attempts to repeal this policy would encounter significant legal challenges.
Birthright citizenship grants automatic American citizenship to anyone born on U.S. soil, regardless of their parents’ immigration status. This policy has been in effect for many years, covering children born to parents who are undocumented or in the U.S. temporarily on tourist or student visas.
While not all countries follow this practice, Trump and his supporters contend that it is frequently misused and advocate for more stringent criteria for acquiring U.S. citizenship.
Conversely, opponents argue that birthright citizenship is a constitutional right guaranteed by the 14th Amendment, making it exceedingly challenging to abolish. Even if it were feasible, many believe it would be detrimental.
Read More: How the 14th Amendment’s Promise of Birthright Citizenship Redefined America
Let’s delve into the topic of birthright citizenship, what Trump has articulated regarding it, and the potential for its termination:
Trump’s Position on Birthright Citizenship
In a recent NBC Meet the Press interview, Trump asserted that he is committed to eliminating birthright citizenship upon taking office.
“We’re going to end that because it’s ridiculous,” he stated emphatically.
Trump and his allies argue that birthright citizenship incentivizes illegal immigration and contributes to “birth tourism,” where pregnant women enter the U.S. solely to give birth, ensuring their children receive citizenship before returning home.
“Simply crossing the border and having a child should not grant anyone citizenship,” said Eric Ruark, research director for NumbersUSA, which advocates for reduced immigration. This organization supports reforms that would necessitate at least one parent to be a legal resident or U.S. citizen for their children to gain citizenship automatically.
Others argue that abolishing birthright citizenship could have severe repercussions for the nation.
“One of the significant advantages we have is that individuals born here are citizens and not part of an illegal underclass. This facilitates better integration and assimilation of immigrants and their children due to birthright citizenship,” stated Alex Nowrasteh, vice president of economic and social policy studies at the pro-immigration Cato Institute.
In 2019, the Migration Policy Institute estimated that approximately 5.5 million children under 18 lived with at least one parent who was in the country illegally, representing about 7% of the U.S. child population. Most of these children were U.S. citizens.
The nonpartisan think tank warned during Trump’s 2015 presidential campaign that repealing birthright citizenship could lead to a significant increase in the number of people living in the U.S. illegally, creating a generations-long cycle of exclusion from social membership.
Legal Context
Following the Civil War, Congress ratified the 14th Amendment in July 1868, ensuring citizenship for all individuals, including Black Americans.
The 14th Amendment 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.” It further asserts that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
However, the 14th Amendment has not always guaranteed birthright citizenship for everyone. For instance, it wasn’t until 1924 that Congress granted citizenship to all Native Americans born in the U.S.
Read More: What the Constitution Really Says About Birthright Citizenship
A significant case concerning birthright citizenship occurred in 1898 when the U.S. Supreme Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants, was a U.S. citizen based on his birthplace. The federal government attempted to deny him reentry after a trip abroad, citing the Chinese Exclusion Act.
Nonetheless, some contend that the 1898 ruling specifically applied to children of legal immigrants and does not necessarily extend to children born to parents who lack legal status or those visiting temporarily on tourist visas.
“That ruling is the leading case on this issue. It’s the only case of its kind,” remarked Andrew Arthur, a fellow at the Center for Immigration Studies, which advocates for stricter immigration policies. “The legal question is more open than most people realize.”
Some proponents of immigration restrictions argue that the phrase “subject to the jurisdiction thereof” in the 14th Amendment permits the U.S. to deny citizenship to children born to individuals in the country illegally. Trump himself reiterated this language in a 2023 announcement about his intention to terminate birthright citizenship if reelected.
What Actions Could Trump Take and Their Likelihood of Success?
Trump was not specific in his Sunday interview regarding his strategy for abolishing birthright citizenship.
When asked how he might circumvent the 14th Amendment through executive action, Trump indicated, “Well, we’re going to have to get it changed. We might need to consult the public. But we must end it.” When pressed for details about using an executive order, he replied, “if we can, through executive action.”
In a 2023 post on his campaign website, Trump elaborated that he would issue an executive order on his first day in office, mandating that federal agencies require at least one parent to be a U.S. citizen or lawful permanent resident for their future children to automatically obtain U.S. citizenship.
The campaign also stated that the executive order would clarify that children of individuals in the U.S. illegally “should not be issued passports, Social Security numbers, or qualify for certain taxpayer-funded welfare benefits.”
This action would almost certainly lead to litigation.
Nowrasteh from the Cato Institute emphasized that the law clearly states that birthright citizenship cannot be abolished by executive order, but Trump may still attempt to challenge it in court.
“I don’t take his statements very seriously. He has been making such claims for nearly a decade,” Nowrasteh noted. “During his previous presidency, he did not make any progress on this agenda. The law and judicial system largely oppose his legal theory that children of illegal immigrants born in the U.S. are not citizens.”
While Trump could encourage Congress to pass legislation to end birthright citizenship, such a law would likely face constitutional challenges.
—Santana reported from Washington. Associated Press reporter Elliot Spagat in San Diego contributed to this report.
