President Donald Trump imposed an executive order outlawing birthright citizenship—in which anyone born in the U.S. automatically becomes a citizen—on the first day of his second term Monday, a move that’s already been met with multiple legal challenges, as experts widely believe he does not have the power to change the policy on his own.
President Donald Trump holds up an executive order after signing it during an indoor inauguration ... [+]
Trump’s executive order states people born in the U.S. are not citizens if their “mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth,” or if the mother was in the U.S. on a “lawful but temporary” basis—like a student, tourist or work visa—and the father isn’t a citizen or “lawful permanent resident.”
The Constitution’s 14th Amendment states, “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,” which has been traditionally interpreted to mean that everyone born in the U.S. automatically becomes a citizen, with only extremely narrow exceptions for people who aren’t subject to U.S. law, like the children of foreign diplomats.
Trump could not undo the 14th Amendment’s provision unilaterally through an executive order: In order to amend the Constitution, both chambers of Congress would have to pass the amendment with a two-thirds majority, and it would also have to be approved by at least three-quarters of the states.
Instead, Trump’s executive order claims the 14th Amendment has “never been interpreted” to give universal citizenship to everyone born in the U.S.—adopting a theory that’s been pushed by a minority of legal experts, which claims the 14th Amendment granting birthright citizenship to people who are “subject to the jurisdiction” of the U.S. means the amendment doesn’t apply to children of undocumented immigrants who are residing in the U.S. unlawfully or people who aren’t permanent residents.
His executive order has already sparked legal challenges, with civil rights organizations including the American Civil Liberties Union and Lawyers for Civil Rights already filing two separate lawsuits arguing Trump’s interpretation of the law is unconstitutional.
The lawsuits echo most legal experts, who do not accept Trump’s interpretation of the law: Former United States Military Academy law professor Margaret Stock described it to NPR in 2018 as a “lunatic fringe argument” and University of Massachusetts, Amherst, professor Rebecca Hamlin told the outlet any lawyer who believes it is “like a unicorn.”
The two lawsuits filed Monday are still pending, and it’s unclear how they’ll be resolved. The birthright citizenship issue is likely go to the Supreme Court, however, which CNN reported in December was the incoming Trump administration’s ultimate goal in challenging the birthright citizenship provision. “Something has to kick off the legal battle,” an anonymous Trump ally told CNN. It remains to be seen if the majority-conservative court will be willing to rule for Trump, however: Mark Krikorian, who runs the Center for Immigration Studies and supports ending birthright citizenship, acknowledged to NBC News in July Trump’s argument is “something that the Supreme Court may well decide against.”
Trump’s executive order directs federal, state and local agencies not to issue any documents that confer citizenship to people born in the U.S. to parents who aren’t citizens or lawful residents. That does not apply retroactively for people who have already been born, however: the order will only apply to people who are born at least 30 days after the executive order was issued Monday. That means people who are already U.S. citizens born to parents who weren’t permanent residents won’t have any issues applying for passports, for instance.
“For Plaintiffs—organizations with members impacted by the Order—and for families across the country, this Order seeks to strip from their children the ‘priceless treasure’ of citizenship ... threatening them with a lifetime of exclusion from society and fear of deportation from the only country they have ever known,” the ACLU and other civil rights groups wrote in their lawsuit challenging Trump’s order. “But that is illegal. The Constitution and Congress—not President Trump—dictate who is entitled to full membership in American society.”
Trump has promoted birthright citizenship as a way of curbing immigration, claiming it would crack down on undocumented immigrants practicing “birth tourism” or using children to “skip the line” on becoming legal residents. Studies have shown it could actually make the number of undocumented immigrants in the U.S. go up, however, as more people in the U.S. who would otherwise be citizens would now be undocumented. A study released by the Migration Policy Institute in September 2010 found that if birthright citizenship ended only for people who have two undocumented parents—which is narrower than Trump’s final executive order—there would be 16 million undocumented immigrants by 2050, which is 44% larger than if birthright citizenship stayed in place. The change is also anticipated to add new bureaucratic hurdles for all Americans having children, who will have to prove their U.S. residency or citizenship and register their children as citizens, rather than have that conferred automatically. It also likely means Americans won’t be able to provide birth certificates as proof of citizenship anymore, and could complicate things like applying for passports.
Under the definition of birthright citizenship put forth in Trump’s executive order, former Vice President Kamala Harris would likely not be a U.S. citizen, as her parents were immigrants on student visas in the U.S. when they met.
Trump claimed on “Meet the Press” before taking office that the U.S. is the only country with birthright citizenship, but that is false: More than 30 other countries also confer citizenship automatically on people who are born there, including Canada and Mexico.
Even some high-profile Republicans have opposed Trump’s opinion that the 14th Amendment doesn’t guarantee citizenship for children of undocumented immigrants. "You cannot end birthright citizenship with an executive order," former House Speaker Paul Ryan, R-Wisc., said in 2018, telling a local radio station he’s a “believer in following the plain text of the Constitution … And I think in this case the 14th Amendment is pretty clear.” James Ho, a prominent conservative judge who now sits on the 5th Circuit Court of Appeals and has been floated as one of Trump’s potential Supreme Court nominees, also opposed the theory in a 2009 report for the American Immigration Council. Ho, who was Texas’ solicitor general at the time, argued birthright citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” “Text, history, judicial precedent, and Executive Branch interpretation confirm” that the 14th Amendment’s text “reaches most U.S.‐born children of aliens, including illegal aliens,” Ho wrote. The exceptions would be cases like the children of foreign diplomats or enemy combatants, Ho noted, who would not be subject to U.S. jurisdiction. (The conservative judge has walked back those arguments in the wake of Trump’s electoral victory.)
Ending birthright citizenship is not a new proposal for Trump, who also floated ending the longstanding right during his 2016 campaign and in his first term. The ex-president never ultimately took any action on birthright citizenship while in office, however, which he justified to “Meet the Press” in December, claiming, “I was going to do it through executive action but then we had to fix COVID first, to be honest with you.” Trump imposed his executive order Monday after previously promising it would be a “day-one” priority for him after retaking office, telling “Meet the Press,” “Yeah, absolutely,” when asked if it was still his plan to “end birthright citizenship on day one.” The order is one of a number of crackdowns Trump has promised to make on immigration during his second term, including mass deportations of undocumented immigrants and curbing family-based visas, which Republicans have termed “chain migration.”
FACT CHECK: 14th Amendment On Citizenship Cannot Be Overridden By Executive Order (NPR)