WASHINGTON — When Donald Trump took office in 2017, he immediately issued a provocative executive order banning travel from Muslim-majority countries, sparking chaos, confusion and a flurry of lawsuits that ultimately ended up in the Supreme Court.
If he wins the election in November, he has pledged to take a similar course on another controversial policy proposal: ending birthright citizenship.
In May last year, Trump released a campaign video renewing his call to end the long-standing constitutional right. He said he would sign an executive order on the first day of his presidency that would ensure that children born to parents who do not have legal status in the U.S. are not considered U.S. citizens.
“The United States is among the few countries in the world that say that even if neither parent is a citizen or even legally resident, their future children are automatically citizens as soon as the parents enter our territory,” Trump said in the video .
It has long been believed that birthright citizenship is required under the 14th Amendment to the Constitution, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States .” The language was included in the constitutional amendment passed after the Civil War to ensure that black former slaves and their children were recognized as citizens.
The term is generally taken for granted by legal scholars of all ideological backgrounds, but that hasn’t stopped some anti-immigration advocates from pushing for an alternative interpretation.
“Litigation is a certainty,” said Omar Jadwat, an attorney with the American Civil Liberties Union who was also involved in challenging the travel ban.
“It’s directly aligned with the 14th Amendment,” he added. “It would essentially be an attempt to tear down one of the most important constitutional protections that have been an important part of our country.”
The Supreme Court ultimately upheld a watered-down version of Trump’s travel ban, leaving the president’s authority on national security issues, but even birthright supporters accept that Trump’s plan faces a potentially insurmountable uphill battle.
“It’s something that the Supreme Court may find against the president if he were to take this step,” said Mark Krikorian, executive director of the Center for Immigration Studies, which supports the idea. His group is in favor of strict immigration restrictions.
If Trump loses that case, the next step is clear, he added: efforts would be needed to initiate the difficult process of amending the Constitution.
A Trump campaign spokesman declined to comment on the plan, citing the former president’s original announcement.
Under Trump’s proposal, at least one parent must be a citizen or legal resident for a child to receive birthright rights. He indicated in his video that the policy would not apply retroactively.
The order, Trump said, would also address so-called “birth tourism,” a situation in which Republicans claim people visit the U.S. near the end of a pregnancy to ensure the child is born as a U.S. citizen.
It is unclear exactly how many children are born in the US each year to parents who are both undocumented, or how many of them could be described as “birth tourists” under Trump’s formulation.
Krikorian’s group has previously said that up to 400,000 children could be born to undocumented parents each year and that thousands of children are born each year as a result of birth tourism.
The American Immigration Council, an immigrant rights group, said it does not have exact figures but noted that there are currently an estimated 3.7 million U.S.-born children who have at least one parent who is undocumented, a number that is derived from US census data.
A spokesperson for US Citizenship and Immigration Services, the federal agency that handles citizenship issues, declined to comment.
Trump had promised to end birthright rights when he first ran for president in 2015, and he raised it again in 2018. But he never issued an executive order.
At the time, House Speaker Paul Ryan, a fellow Republican, rejected the idea, saying, “You can’t do something like that through an executive order.”
Despite Trump’s promise, the plan to end birthright citizenship is not specifically mentioned in the 2024 Republican platform document, which includes a section titled “Seal the Border and Stop the Migrant Invasion.”
The platform does include a pledge to “prioritize merit-based immigration” and end chain migration, a term used to refer to people who hold U.S. citizenship and then use their status to help other family members to enter the country.
Ken Cuccinelli, who served in a senior position at the Department of Homeland Security during the first Trump administration, said the proposal is “appropriate and manageable from a policy perspective,” but did not respond to further questions about how it could be legally implemented.
Cuccinelli wrote the chapter on immigration-related issues that was included in Project 2025, a proposed roadmap for a second Trump administration released by the conservative Heritage Foundation. His section made no mention of birthright citizenship.
‘Historical myth’
“As has been pointed out by many scholars, this current policy is based on historical myth and a deliberate misinterpretation of the law by open borders advocates,” Trump said in his birthright announcement video.
Few people agree with that assessment.
The legal argument, elaborated by anti-immigration advocates, focuses on the language in the 14th Amendment, which states that birthright rights are granted to those “subject to the jurisdiction” of the United States.
Birthright opponents say the language means denying citizenship to anyone whose parents are not legally in the country.
“It can hardly be said that illegal aliens are under the protection of the United States,” said Christopher Hajec, an attorney with the Immigration Reform Law Institute, another group that favors immigration restrictions.
But most legal experts say the jurisdictional language refers only to people not bound by U.S. law, especially foreign diplomats.
Even James Ho, a conservative lawyer appointed by Trump to the New Orleans-based 5th US Circuit Court of Appeals, where he has built a reputation as a judicial rabble-rouser, supports that view.
He wrote in a 2009 article that the language of the 14th Amendment applies to “most U.S.-born children of aliens, including illegal aliens.”
Being under US jurisdiction only means people who are obliged to obey US laws, Ho said. “And obedience obviously has no bearing on immigration status,” he added.
The Supreme Court has never directly ruled on the issue, but the one case often mentioned in any discussion of the issue suggested that people born in the US were presumed to have citizenship regardless of the status of their parents.
In that 1898 case, called 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 U.S. citizen.
Critics of birthright law argue that the ruling does not address whether the children of people who entered the country illegally are U.S. citizens, since in that case the parents were legally admitted.
They even suggest that the ruling assumes that the children of people who enter the country illegally do not have citizenship, although they admit that this argument can be difficult to follow.
“You really have to figure it out,” Hajec said. “It’s a pretty complicated argument.”
If Trump were to follow through on his plan to issue an executive order on day one, the impact would be felt immediately.
The Trump campaign has said the president would direct the Social Security Administration to refuse to provide Social Security numbers to newborn children 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 the policy with the Trump campaign, favors this approach because it would not require congressional action and would immediately trigger a lawsuit that could bring the legal issue to the Supreme Court in short order. would bring.
In the unlikely event that Trump’s plan were to go into full effect, it could be difficult to implement because federal agencies do not necessarily have immigration status and would need to have access not only to information about the newborn child, but also to information about both parents. Sometimes relevant information can be difficult to determine, for example if the immigration status of an absent parent is unknown to the other.
A spokeswoman for the Social Security Administration noted that the agency does not maintain immigration status records, which it must verify with the Department of Homeland Security before assigning Social Security numbers to immigrants.
Currently, a US birth certificate is all that is required to obtain a Social Security number or passport.
Emma Winger, an attorney with the American Immigration Council, said Trump’s proposal would impact every child born in the United States, as every parent would now have to take an extra bureaucratic step to ensure their baby is a citizen is registered.
“Everyone trusts that if they are born here, all they have to do is show a birth certificate,” she said. “It would be a radical change.”
This article was originally published on NBCNews.com
