WASHINGTON — When Donald Trump took office in 2017, he immediately issued a provocative executive order banning travel from Muslim-majority countries, causing chaos, confusion and a flurry of lawsuits that ended up in the Supreme Court.
If he wins the November election, he has vowed to pursue a similar course on another controversial policy proposal: ending birthright citizenship.
Last May, Trump released a campaign video renewing his call to end the long-standing constitutional right, saying he would sign an executive order on his first day in office that would ensure the birth of children born to parents without legal status. Will not be considered a US citizen in the US.
“The United States is one of the only countries in the world that says that even if neither parent is a citizen, even if they are legally in the country, their future children are automatically citizens the moment the parents invade our land,” Trump said in the video.
Birthright citizenship has long been understood under the 14th Amendment to the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This language was included in a constitutional amendment passed after the Civil War to ensure that Black ex-slaves and their children were recognized as citizens.
The phrase is generally understood as self-explanatory by lawyers of all ideological stripes, but that hasn’t stopped some anti-immigration advocates from pressing for an alternative interpretation.
“The court is a certainty,” said Omar Jadwat, an attorney with the American Civil Liberties Union who is involved in the travel ban challenge.
“It’s squarely in the teeth of the 14th Amendment,” he said. “It would actually be an attempt to tear down one of the basic constitutional protections that is a fundamental part of our country.”
The Supreme Court ultimately upheld a watered-down version of Trump’s travel ban, handing back the president’s authority on national security matters, but even supporters of birthright citizenship face an uphill battle if they accept Trump’s plan.
“It’s something the Supreme Court could rule against if the president takes this step,” said Mark Krikorian, executive director of the Center for Immigration Studies, which supports the idea.
If Trump loses the case, the next step is clear, he added: Efforts must be made to begin the difficult process of amending the Constitution.
A spokesman for the Trump campaign declined to comment on the plan, pointing to the former president’s plan original ad.
Under Trump’s proposal, at least one parent must be a citizen or legal resident for a child to receive citizenship at birth. He stated in his video that the policy will not be applied retroactively.
Trump said the order would also address so-called “birth tourism,” a situation in which Republicans claim they travel to the U.S. near the end of a pregnancy to ensure a child is born as a U.S. citizen.
It’s not clear how many children are born each year in the U.S. to parents who are both undocumented, or how many of them could be described as “birth tourists,” according to Trump’s testimony.
Krikoriya has a group said before there may be as many as 400,000 children a year to undocumented parents and thousands born each year as a result of birth tourism.
The American Immigration Council, an immigrant rights group, said it did not have exact numbers, but noted that there are currently 3.7 million children born in the United States who have at least one parent who is undocumented, according to U.S. Census data.
A spokeswoman for the US Citizenship and Immigration Services, the federal agency that handles citizenship issues, declined to comment.
Trump first promised to end birthright citizenship when he ran for president in 2015, and brought it up again in 2018. But he never issued an executive order.
At the time, House Speaker Paul Ryan, a fellow Republican, dismissed the idea, saying, “You can’t do that with an executive order.”
Despite Trump’s promise, the plan to end birthright citizenship is not specifically mentioned 2024 Republican platform The document includes a chapter titled “Seal the Border and End the Migrant Invasion.”
The platform includes language pledging to “prioritize merit-based immigration” and end chain migration, a term used to refer to people who hold US citizenship and then use their status to help other family members enter the country.
Ken Cuccinelli, who served at the Department of Homeland Security in the first Trump administration, said the proposal was “policy appropriate and manageable,” but did not respond to further questions about how it would be implemented legally.
Cuccinelli wrote the chapter on immigration issues included in Project 2025, a proposed road map for a second Trump administration released by the conservative Heritage Foundation. His division He did not mention citizenship by birth.
“Historical Myth”
“As many scholars have argued, this current policy is based on a historical myth and a deliberate misinterpretation of the law by open borders advocates,” Trump said of birthright citizenship in an announcement video.
Few people agree with this assessment.
The legal argument advanced by anti-immigration advocates focuses on language in the 14th Amendment that says birthright citizenship is granted to those “subject to the jurisdiction” of the United States.
Opponents of birthright citizenship say that the language means that anyone whose parents are not legally in the country should not be granted citizenship.
“It’s not like illegal aliens are under the protection of the United States,” said Christopher Hajec, a lawyer with the Immigration Reform Law Institute, another anti-immigration group.
But most legal experts say the jurisdictional language only applies to people not bound by U.S. law, especially foreign diplomats.
Even James Ho, a conservative lawyer appointed by Trump to the 5th U.S. Circuit Court of Appeals in New Orleans, supports this view.
He In 2009, he wrote in an article The 14th Amendment said the citizenship language applied to “most children of aliens born in the United States, including illegal aliens.”
Ho said being under US jurisdiction simply means people are required to obey US law. “And obedience certainly doesn’t unlock immigration status,” he said.
The Supreme Court never directly ruled on the issue, but a case often cited in any discussion of the issue held that people born in the United States had citizenship, regardless of the status of their parents.
In 1898, in the case of United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to parents who were both from China was a citizen of the United States.
Critics of birthright citizenship argue that the decision does not address whether the children of people who entered the country illegally are U.S. citizens because the parents in those cases were admitted legally.
In fact, they say the ruling assumes that the children of people who entered the country illegally do not have citizenship, although they acknowledge that the argument can be difficult to follow.
“You really have to make fun of it,” Hajec said. “It’s a pretty complicated debate.”
If Trump followed through on his plan to issue an executive order on day one, the impact could be felt immediately.
Trump’s campaign said the president would order the Social Security Administration to refuse to issue Social Security numbers to newborns without proof of the parents’ immigration status. He would issue a similar order to the State Department regarding passports.
Krikorian, who said he has not discussed policy with the Trump campaign, prefers that approach because it won’t require any action from Congress and will immediately file a lawsuit that would quickly take the legal challenge to the Supreme Court.
If Trump’s plan is unlikely to go into full effect, it could be difficult to implement because federal agencies don’t necessarily have immigration status in their hands and need to know not just about the newborn, but about both. parents. Sometimes it can be difficult to determine the relevant information, for example, if the immigration status of the absent parent is unknown to the other.
A spokeswoman for the Social Security Administration noted that the agency does not retain information on immigration status and must check with the Department of Homeland Security before issuing Social Security numbers to immigrants.
Currently, only a US birth certificate is required to obtain a Social Security number or passport.
Emma Winger, a lawyer at the American Immigration Council, said Trump’s proposal would affect any child born in the United States, as each parent would now have to go through an additional bureaucratic step to register their baby as a citizen.
“Everybody believes that if they were born here, they just have to show proof of birth,” he said. “It would be a radical change.”