President-elect Donald Trump has long opposed the concept of birthright citizenship in the 14th Amendment.
During the 2024 presidential campaign, he stated that on the first day of his second term, he would sign an executive order eliminating the current policy, which he described in a video as “based on a historical myth and a willful misinterpretation of the law.”
In the United States, a constitutional amendment always wins out over an executive decree, but Trump’s attitude reflects the enduring notion that something should be done to prevent undocumented immigrants’ children from claiming US citizenship.
How could Trump challenge birthright citizenship?
In that campaign video, Trump stated that 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.”
According to AWN’s Priscilla Alvarez, Trump’s new administration may prohibit providing passports to the children of undocumented immigrants, setting up a legal confrontation. Furthermore, Trump’s team may increase “expedited removal” of undocumented immigrants across the country without a court hearing, calling into question another provision of the 14th Amendment, which guarantees equal legal protection to all people.
Both Trump and his incoming “border czar,” Tom Homan, have stated that they will not hesitate to deport the parents of US citizens who are minors.
“If you come to the country and have a child, it is on you. You can take the child with you, but that’s up to you,” Homan said on Tuesday in Chicago, adding that he would target undocumented persons living in sanctuary areas such as Chicago.
As president in 2020, Trump attempted to restrict visas for pregnant women visiting the United States for so-called birth tourism.
Why does the United States have birthright citizenship?
The United States possesses birthright citizenship, which ensures that the descendants of those brought to the country against their choice and sold as slaves become citizens.
In what is often regarded as the worst moment in US Supreme Court history, the Dred Scott decision of 1857, then-Chief Justice Roger B. Taney argued for a 7-2 majority that no descendant of an enslaved person could be a US citizen. Scott, an enslaved man from Missouri, had previously lived in free territories with his Army surgeon owner. He sued for his freedom after returning to Missouri.
The ruling was overturned by the 13th Amendment, which abolished slavery, and the 14th Amendment, which ensured that everyone born in the United States was a citizen and protected by the Bill of Rights.
What exactly does the 14th Amendment say?
Here is the language of the first section of the amendment:
All persons born or naturalized in the United States and subject to its jurisdiction are citizens of both the United States and the state in which they reside. No State shall enact or enforce any law that restricts the rights or immunities of United States citizens; nor shall any State deprive any person of life, liberty, or property without due process of law; nor shall any State deny any person within its jurisdiction equal protection under the laws.
The language is fairly straightforward. Anyone born in the United States is a US citizen.
For more information on the amendment’s history, read this excellent explainer by AWN’s AJ Willingham, which was written in 2018, when Trump vowed to attack the concept of birthright citizenship.
How can the 14th Amendment not apply to undocumented children?
One of the biggest proponents of the theory that the amendment does not apply to children of unauthorized immigrants born in the United States is John Eastman, the same lawyer who devised the six-step strategy by which Trump attempted to undermine the 2020 election results.
While Trump returns to the White House, Eastman has been charged with election tampering in Georgia and Arizona, as well as being disqualified from practicing law in California. But, before all of that, he argued that the country had been misinterpreting the 14th Amendment for almost 150 years.
He said that the word between the commas, “and subject to the jurisdiction thereof,” effectively disqualifies the offspring of people who are not legally present in the United States. According to Eastman and other experts, all that is required is for Congress to establish a legislation specifically stating that the offspring of those who are in the country unlawfully cannot obtain citizenship.
It’s a fringe argument, as even conservative lawyers and judges have dismissed it.
Why doesn’t Trump simply alter the Constitution?
More than 30 years have passed without a constitutional change being enacted. They’re famously difficult to implement. They can be suggested by a two-thirds vote in both chambers of Congress, or by a constitutional convention convened by two-thirds of the states. The amendment must next be passed by three-quarters of state legislatures or by special conventions held in each state.
If Trump and the 14th Amendment sound familiar, it’s because a different portion of the amendment prohibits persons who participated in or assisted insurrections against the United States from holding federal office. The Supreme Court determined earlier this year that the insurrection clause could only be applied to Trump through an act of Congress, paving the path for his inclusion on ballots this November.