In late October 2018, President Trump revealed in an interview to Axios on HBO that he planned to sign an executive order that would remove the right to U.S. citizenship by birth. Should Trump revoke birthright citizenship, also known as jus soli, children born on U.S. soil to non-citizen parents would no longer be granted automatic citizenship. In the interview, Trump said, “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. It’s ridiculous. It’s ridiculous. And it has to end.”
Trump’s claim is not only inaccurate, but it also has no basis. According to the right-wing Center for Immigration Studies, 30 other countries, many of them in the Western Hemisphere, grant citizenship to children born in their respective land – regardless of parental citizenship status. Moreover, with regards to Trump’s proposed plan to remove birthright citizenship for children born to non-citizen parents, he declared he would enact this through an executive order, a likely unconstitutional move. As former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed explains, “Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship.”
Traditionally, changing jus soli requires a constitutional amendment. This debate calls into question part of the Fourteenth Amendment, which reads: “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.” While some may believe that this amendment only applies to children born to legal and permanent residents due to the uncertainty of how the line “subject to the jurisdiction thereof” applies to people who reside in the United States illegally, others argue that it applies to all people born in the United States – which is how the clause has been applied since its existence.
Some commentators’ concerns about a potential executive order, even if legally invalid, extend to the symbolic nature of the move as well. Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, has said, “Aside from being unconstitutional, such an executive order would exacerbate racial tensions, exploit fears and drive further polarization across the country at a moment that calls for the promotion of unity and inclusion. The letter and spirit of the Fourteenth Amendment places those born in this country on equal footing, and an executive order that strips away citizenship would create a permanent group of second-class citizens and invite litigation.”
Even after the passage of the Fourteenth Amendment, the United States denied several nationalities and minorities citizenship on racist grounds. In 1898, Wong Kim Ark was denied reentry to the United States from China because he was not considered a citizen, despite being born in San Francisco after the United States adopted jus soli. During this time, the Chinese Exclusion Acts denied citizenship to Chinese immigrants, and a treaty denied Chinese people the right to become a naturalized citizen. However, in United States v. Wong Kim Ark, the Supreme Court correctly applied the Fourteenth Amendment and held that the government could not deny citizenship to people born in the United States.
Despite this binding precedent, Trump’s former Deputy National Security Adviser, Michael Anton, attempted to provide legal arguments to support Trump’s claims. Anton said that “the birthright citizenship clause was intended to settle forever the question of the citizenship status of freed slaves and of other free blacks” and so has “nothing whatsoever” to say about “the children of illegal immigrants.” However, according to University of Chicago law professor Aziz Huq, when the Fourteenth Amendment was passed, the children and grandchildren of former slaves were technically thousands of “illegal immigrants.” According to Huq, “No one at the time, or since, has suggested that their entry into the United States in clear violation of federal law robbed their children of birthright citizenship…If the Fourteenth Amendment’s birthright citizenship was to have had its intended (and, in fact, historically observed) effect, it cannot exclude the children of the undocumented.” According to Huq, if the Fourteenth Amendment included a clause that excluded the children of illegal immigrants, the status of the freed slaves would not have been settled, and the purpose of this clause in the amendment would be defeated.
Because the case has never been raised before the Court, no one truly knows what the legal reality of the situation will be if Trump follows through with the executive order. The order will likely be appealed to the Supreme Court to determine the question. It is probable – based on precedent and the opinion of legal scholars – that the executive order will be overturned.
If the Supreme Court upheld the executive order, it would have extreme consequences by putting millions at risk for deportation. According to the left-wing Migration Policy Institute, an end to birthright citizenship would grow the undocumented population from about 17 million to more than 25 million by 2050. According to the Institute, these undocumented individuals would lack access to basic benefits and legal protections, impacting their overall welfare.
Overall, an Trump’s end to birthright citizenship through executive order will not solve any of the immigration issues the United States faces. Rather, the seemingly unconstitutional change would exacerbate the problem and cause millions to become stateless upon birth.