According to two sources familiar with the discussions, President-elect Donald Trump’s team is considering several options to fulfill his long-promised pledge to end birthright citizenship, setting up a legal battle with the expectation that the Supreme Court will eventually rule on the issue.
For years, Trump has railed against birthright citizenship, which is protected by the 14th Amendment, and has intimated that he will use executive action to remove it.
“We’re going to have to change it, or maybe I’ll go back to the people, but we’ve got to stop it. “We’re the only country that has it,” Trump told NBC’s Kristen Welker, repeating a false statement from the past. “If we can, we’ll take executive action. I was going to accomplish it by executive action, but, to be honest, we needed to repair Covid first.
In secret, his allies have been devising tactics to do this, including instructing the State Department not to issue passports to children of undocumented parents and tightening tourist visa restrictions to combat “birth tourism,” according to two persons familiar with the plans.
Multiple alternatives for tightening the interpretation are being discussed among Trump friends, who are well aware that any action would almost certainly be legally challenged and eventually brought before the Supreme Court.
“Something has to kick off the legal battle,” one of the insiders told AWN.
When contacted for reaction, the Trump transition team cited Trump’s remarks to Welker.
Trump supporters claim that the 14th Amendment has been misconstrued and does not apply to children born in the United States to undocumented parents. Some immigration hardliners have claimed that children of undocumented immigrants are not “subject to the jurisdiction” of the United States and should not be considered citizens under the Constitution.
People born on their soil are granted automatic citizenship in over three dozen countries, including the United States’ neighbors Canada and Mexico, as well as the majority of South American countries. The Pew Research Center estimates that approximately 4.4 million US-born children under the age of 18 live with an undocumented parent.
“This isn’t a barn fire emergency. This does not have to be done, completed, and finalized in the first year. “They know they’re going to the Supreme Court, and they’ll make their case methodically,” said another knowledgeable source.
A judicial battle is unavoidable, but obtaining the Supreme Court to hear such a case is not guaranteed, and the high court will be less likely to do so if there is no disagreement among the circuits regarding the definition of birthright citizenship.
However, if the Trump administration brings the matter to the court’s emergency docket, requesting that the high court stop a lower court ruling barring the program, the justices will be forced to take action. If the Supreme Court does take up the issue, it may avoid the key constitutional questions by ruling against Trump based on the statute that guarantees birthright citizenship.
“I don’t think it’s likely, but there is an offramp if they wanted it,” said Steve Vladeck, an AWN legal analyst and Georgetown University Law Center professor.
The Trump team’s strategy to remove birthright citizenship has been matched by others preparing to contest the move in court.
“We expect to sue, and others will as well,” stated Cody Wofsy, the ACLU Immigrants’ Rights Project’s deputy director. “We have been very focused on what we’re going to do in this scenario and we’re ready to go.”
The 14th Amendment of the Constitution, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” as well as similar statutes with pre-existing constitutional provisions, support the case for affirming birthright citizenship.
Longstanding Supreme Court rulings are also a significant challenge for the incoming Trump administration. An 1898 Supreme Court decision upheld the amendment’s application to kids born in the United States to noncitizen parents, while a 1982 judgment clarified that the amendment also applied to children born to undocumented immigrants.
“History is plain. The constitutional text is unambiguous. “The longstanding precedent is clear,” Wofsy stated. “So, we are confident that, at the end of the day, the Constitution will prevail and people who are born here will continue to be recognized as US citizens.”
Democratic attorneys general are eager to join the fight as well.
New Jersey Attorney General Matthew Platkin expressed concern about the proposal’s impact on his wife, a Philadelphia-born daughter of Chinese immigrants.
California Attorney General Rob Bonta described Trump’s reasons for ending the right as “typical outlier extremist type of argument” that “won’t fly.”
“We are definitely going to be suing him in court if there’s an attempt to deport US citizens,” he told CNN.
Legal experts are convinced that birthright citizenship will survive, even with a right-leaning Supreme Court that has demonstrated a readiness to overturn old precedents on other issues, like as abortion rights and regulatory power.
Hiroshi Motomura, an immigration and citizenship scholar at the University of California, Los Angeles School of Law, said a Supreme Court reversal of the 1898 birthright citizenship ruling would be “quite different” and “far more radical” than how the conservative majority has overturned other precedents such as Roe v. Wade.
“It really goes to how the nation sees itself and how it defines itself as a democracy,” Motomura told ABC News. “The 14th Amendment and its interpretation comes out of history of being a nation and recognizing that to populate the nation and to settle the nation, you needed to give membership to people who were born in this country.”
