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The Hill
The Hill
5 Aug 2023
Nick Robertson

NextImg:Tim Scott questions constitutionality of 2024 opponents’ promises to end birthright citizenship

Presidential candidate Sen. Tim Scott (R-S.C.) questioned promises by primary rivals to end birthright citizenship, saying it may not be constitutional.

Both former President Trump and Florida Gov. Ron DeSantis (R) have pledged to end the practice.

“I think the Congress would have to act. The president cannot do that by himself or herself outright,” Scott said in a CBS interview Friday.

Scott said his opponents may be making promises they legally are not able to keep.

“Yeah, I don’t know how you do that without addressing the constitutional challenges,” he said.

Birthright citizenship guarantees that any person born on U.S. soil, no matter the citizenship of their parents, automatically becomes a U.S. citizen.

That right is guaranteed under the 14th Amendment, which 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.”

There is also a federal law ensuring birthright citizenship.

The policy has been criticized by many anti-immigration advocates, claiming it encourages people to travel to the U.S. to have children and take advantage of their citizenship.

In May, Trump pledged to end the practice on his first day in office, if elected. He pledged to do the same during his term as president but did not pursue a policy change.

Rep. Matt Gaetz (R-Fla.), a Trump ally, introduced a bill in Congress last week which would modify federal law to effectively end the practice, as well.

DeSantis made a similar promise in his campaign immigration plan, released in June.

Trump and DeSantis’ proposals question a key phrase in the Amendment’s wording, “subject to the jurisdiction thereof.” They argue that because undocumented immigrants are not legally in the country, they should not fall under the protections.

Constitutional scholars have noted that all people on American soil, regardless of citizenship or legal status, generally fall under jurisdiction of American laws.

Legal experts have said that any attempt to modify birthright citizenship would call parts of the Constitution into question and create conflict in the Supreme Court, one which the conservatives would likely invite.

“This will set up the court fight — the order will be enjoined, case will eventually reach SCOTUS, which then will finally have to rule on the meaning of ‘subject to the jurisdiction,’” Mark Krikorian, executive director of the Center for Immigration Studies, wrote. The group is known for its calls for massive reductions in immigration.

The U.S. has the most broad birthright citizenship processes of any major country in the world. Full birthright citizenship policies are common in North and South America. Most nations in western Europe have some restrictions on the practice.