Donald Trump probably will not be able to fulfill his stated aim of ending birthright citizenship in the US when he returns to the White House, but it is perhaps more conceivable than during his first term, according to legal experts.
The US constitution guarantees citizenship to anyone born in the country, even if they are the children of undocumented immigrants.
The president-elect said he would eliminate that right during his first term and again recently said during a television interview that he planned to and could use an executive action or would “maybe have to go back to the people”.
The aim comes at the same time as Trump plans to carry out mass deportation of millions of undocumented immigrants during his second term – an ambition that has civil liberties groups and many Democrats bracing for economic and legal chaos and protests.
But if Trump were to try to use executive action to eliminate birthright citizenship, courts would probably strike it down because of language contained in the 14th amendment, according to scholars.
Still, given the conservative majority on the supreme court – and fact that one of the people considered a candidate for the court has argued that the provision does not apply to children of “invading aliens” – it’s not a certainty that birthright citizenship will remain in place, said Amanda Frost, a University of Virginia law professor and expert in immigration and citizenship law.
“At the end of his last presidency, if I was asked, ‘Is this something he can do?’ I would have said, ‘It’s never going to happen; it’s just a talking point,’” Frost said. “The constitution text and the judicial precedent and very long-standing practice and the purpose of the provision all say, ‘No,’ but at the end of the day, the constitution means what five members of the supreme court say it means.”
Birthright citizenship dates to the passage of the 14th amendment in 1868 in the wake of the American civil war and it was intended to repeal the Dred Scott decision, in which the supreme court held that enslaved people were not citizens of the US.
The amendment declared that 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”.
“This is not something that is subject to unilateral executive order,” said Andrew Rudalevige, a Bowdoin College professor who studies the American presidency and wrote a book on the limits of presidential power. “The language of the 14th amendment is pretty clear.”
But in 2018, Trump said that he could – and would – use an executive order to end the right to citizenship for children born in the United States to non-citizens. He also has said inaccurately that the US was the only country that allowed birthright citizenship, when in fact many countries provide the same right.
“We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous and it has to end,” Trump said during an interview on HBO.
Then Trump said recently on Meet the Press that he did not take the executive action during his first term because he had to “fix Covid first” but that he would do so on the first day of his new administration.
Supporters of eliminating birthright citizenship have argued that the “jurisdiction” language could exclude children of undocumented immigrants.
“Congress has the power to define what it means to be born in the United States ‘and subject to the jurisdiction thereof’, ” the Republican Utah senator Mike Lee posted on X. “While current law contains no such restriction, Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.”
Adam Winkler, a law professor at UCLA, said there was no “legal understanding of the term jurisdiction” to support the argument that “undocumented immigrants are not subject to the jurisdiction of the United States.
“The government has power over them. That is what we mean by jurisdiction,” Winkler said. “If conservatives are willing to say that undocumented immigrants can never be jailed for a crime, maybe they can start to get somewhere. But I don’t think that’s a conclusion that they really want to reach.”
James Ho, a US fifth circuit judge and Trump appointee, who some have speculated could be appointed to the supreme court should there be an opening, recently told Reason magazine that no one “has ever argued that the children of invading aliens are entitled to birthright citizenship”.
He previously offered the opposite opinion, writing: “Birthright citizenship is guaranteed by the 14th Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
While Frost thinks it’s unlikely the supreme court would overturn birthright citizenship, she pointed out that the court can be swayed by public sentiment.
For example, in 1986, the supreme court ruled that the 14th amendment did not prevent states from criminalizing private sexual conduct involving same-sex couples. Then in 2003, the court overturned that decision and declared all sodomy laws unconstitutional.
“The way constitutional change generally happens is an accumulation of various voices supporting that change and public opinion,” Frost said.
Trump did not clarify what he meant when he said that to eliminate birthright citizenship, he would “maybe have to go back to the people”.
But to amend the constitution, which has not happened since 1992, the amendment would have to be proposed either by Congress with a two-thirds majority vote in both the House and the Senate or by a constitutional convention called by two-thirds of the state legislatures. Then the legislatures of three-fourths of the states would need to ratify it.
“It’s quite a procedural barrier, in terms of getting a super majority in Congress, getting a super-majority of states to sign off on it,” Rudalevige said. “It’s a pretty high bar.”
But for Trump, even if he is unable to muster the support for a constitutional amendment or if the court struck down an executive order, he could conclude “that he gets value out of fighting, out of showing that he is trying to change the established way of doing business, even if he is incorrect on the merits”, Rudalevige said.
In the unlikely event that Trump eliminates birthright citizenship, that change would hurt the country, the scholars said.
“The 14th amendment was intended to end caste in America, the idea that there is a lower class, a sub class, that lives among us,” Frost said. “This could bring that back.”
