by Zachary B. Wolf
President-elect Donald Trump has for years been railing against the concept of birthright citizenship in the 14th Amendment.
During the 2024 presidential campaign, he promised that, on Day One of his second term, he would issue an executive order ending the current policy, which he said in a video is “based on a historical myth and a willful misinterpretation of the law.”
A constitutional amendment beats an executive order every time in the US system of government, but Trump’s position represents the persistent belief that something should be done to stop the children of undocumented immigrants from claiming US citizenship.
How might Trump challenge birthright citizenship?
In that campaign video, Trump said his executive order will make “clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic US citizenship.”
CNN’s Priscilla Alvarez has reported that Trump’s new administration could stop issuing passports to the children of the undocumented, engineering a legal showdown over the issue. In addition, Trump’s team might step up “expedited removal” of undocumented immigrants across the country without a court hearing, challenging another sentence of the 14th Amendment, which guarantees equal protection to every person under the law.
Both Trump and his incoming “border czar,” Tom Homan, have said they will not shy away from deporting the parents of US citizens who are children.
“If you come in the country and have a child, that’s on you. You can either take the child with you, but that’s on you,” Homan said on Tuesday in Chicago, adding he would target undocumented people living in cities like Chicago that have sanctuary policies.
As president in 2020, Trump tried to restrict visas for pregnant women entering the US for so-called birth tourism.
Why does the US have birthright citizenship?
The US has birthright citizenship to guarantee that the descendants of people brought to the US against their will and sold as slaves are citizens.
In probably the worst moment in the US Supreme Court’s history, the Dred Scott decision of 1857, then-Chief Justice Roger B. Taney wrote for a 7-2 majority that no descendant of an enslaved person could be a US citizen. Scott was an enslaved man from Missouri who had lived in free territories with his Army surgeon owner. He sued for freedom after returning to Missouri.
The decision was undone by the 13th Amendment, which abolished slavery, and the 14th Amendment, which guaranteed that everyone born in the US was a citizen of the US and protected by its Bill of Rights.
What does the 14th Amendment say?
Here’s the text of the first portion of the amendment:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The language is pretty clear. Anyone born in the US is a citizen of the US.
For more on the history of the amendment, read this excellent explainer from CNN’s AJ Willingham, written in 2018, when Trump threatened as president to challenge the concept of birthright citizenship.
How could the 14th Amendment not apply to the children of the undocumented?
One of the main backers of the idea that the amendment does not apply to children of undocumented immigrants born in the US is John Eastman, the very same lawyer who hatched the six-step game plan by which Trump attempted to subvert the 2020 election results.
While Trump is returning to the White House, Eastman has since been indicted in Georgia and Arizona for election interference and disbarred in California. But before any of that, he was pushing the idea that the country has been misinterpreting the 14th Amendment for the past 150-plus years.
He argued that the phrase in between the commas, “and subject to the jurisdiction thereof,” essentially disqualifies the children of people not legally living in the US. All it would take is for Congress to pass a law expressly saying the children of people in the country illegally cannot have citizenship, according to Eastman and some other scholars.
It’s a fringe theory in that even conservative lawyers and judges have rejected it.
Judge invites new ‘invasion’ theory
For more on why Eastman’s argument does not apply, look to James Ho, now a Trump-appointed judge on the 5th US Circuit Court of Appeals. Ho wrote in 2006 that the 14th Amendment was enacted expressly to undo the Dred Scott decision and return the US to principles of English common law, by which everyone born in the country was a citizen.
Note: The United Kingdom actually did away with unrestricted birthright citizenship with its British Nationality Act of 1981, but many other countries, including Canada and Mexico on either side of the US, still adhere to the principle.
Ho, a potential contender for a Supreme Court seat if one opens up during Trump’s new term, raised many eyebrows when he was interviewed by the libertarian Reason magazine in November. Without commenting on any specific cases, he added a qualification to his legal support for birthright citizenship. Ho said this:
Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.
Earlier this year, coincidentally, CNN’s John Fritze notes that Ho had used that term, “invasion,” in a concurring opinion on a different topic.
“In an opinion this summer dealing with Texas’ construction of a floating barrier on the Rio Grande, Ho wrote that Texas should have prevailed in the case because the state was repelling an ‘invasion’ of migrants,” according to Fritze.
Has the Supreme Court ever ruled on this?
The Supreme Court did unequivocally find in the case of Wong Kim Ark in 1898 that the children of noncitizens born in the US to “resident aliens” are citizens under the 14th Amendment.
Wong Kim Ark was born in the US to Chinese immigrants but denied entry back into the country after a trip to China due to the Chinese Exclusion Act. Ho described the circumstances of that case in his 2006 defense of birthright citizenship. He included this sweeping language confirming the principle of birthright citizenship from the 1898 court:
The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. … To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.
At the time, Ho argued that the decision extended citizenship to people born in the US regardless of immigration status.
Why doesn’t Trump just change the Constitution?
There hasn’t been a constitutional amendment ratified in more than 30 years. They’re notoriously hard to enact. They can either be proposed by a two-thirds majority vote in both chambers of Congress or by a constitutional convention called for by two-thirds of the states. The amendment must then also be ratified by three-quarters of state legislatures or of special conventions called in each state.
If talk of Trump and the 14th Amendment sounds familiar, that’s because a different section of the amendment bars people who engaged in or aided insurrection against the US from serving in federal office. The Supreme Court earlier this year ruled that the insurrection clause could only be applied to Trump by an act of Congress, clearing the way for his appearance on ballots this fall.
*first published in: Cnn.com
By: N. Peter Kramer
