Donald Trump has reignited discussions around U.S. birthright citizenship, proposing to end this longstanding constitutional right as part of his immigration policies. This contentious topic raises critical questions about the scope of presidential powers and the future of citizenship in the United States. Below, we delve into what birthright citizenship is, its legal framework, and whether it can be altered.
What is Birthright Citizenship?
Birthright citizenship refers to the concept that any individual born within the United States automatically acquires citizenship. regardless of their parents’ immigration status. This right is enshrined in the 14th Amendment to the U.S. Constitution, which was ratified in 1868. The Citizenship Clause explicitly 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.
Source: U.S. Constitution, 14th Amendment
The Immigration and Nationality Act of 1952 reinforced this by defining citizenship in a way consistent with the 14th Amendment.
Children born in the U.S. to undocumented immigrants are automatically recognized as U.S. citizens. Estimates from the Department of Homeland Security suggest there were approximately 11 million undocumented immigrants in the U.S. as of January 2022, a figure some analysts believe has since increased to between 13 and 14 million. The offspring of these individuals, born on U.S. soil, benefit from this constitutional right.
Are There Any Exceptions?
Yes, there are specific exceptions to birthright citizenship. For instance, children born in the United States to foreign diplomats with immunity are not considered U.S. citizens. This is because they are not “subject to the jurisdiction” of the United States under the legal interpretation of the 14th Amendment.
Historical Supreme Court Decisions
The U.S. Supreme Court has addressed the concept of birthright citizenship in landmark cases, but its rulings have primarily focused on lawful immigrants rather than individuals without legal status.
One pivotal case in 1898 involved Wong Kim Ark, a man born in San Francisco to lawful Chinese immigrants during an era of severe restrictions on Chinese immigration. The Court ruled in his favor, affirming his citizenship under the 14th Amendment despite an attempt to deny him re-entry to the U.S. after a trip to China.
Another significant case from 1884 involved John Elk, a Native American born within a tribal community. The Court ruled that Elk was not a U.S. citizen at birth because he was not fully under U.S. jurisdiction. However, Congress later extended U.S. citizenship to all Native Americans in 1924, resolving such ambiguities.
Opposing Views on Birthright Citizenship
Opponents of birthright citizenship argue that the 14th Amendment’s language about being “subject to the jurisdiction” of the U.S. excludes children of undocumented immigrants. This interpretation suggests that the amendment was not intended to apply to those who entered the country illegally.
Some lawmakers have attempted to legislate changes. For example, Republican senators proposed bills defining U.S.-born children of undocumented immigrants as not “subject to the jurisdiction” of the U.S., effectively denying them automatic citizenship.
However, many constitutional scholars dismiss this interpretation. They argue that undocumented immigrants, unlike diplomats, are subject to U.S. laws and therefore fall under the jurisdiction clause of the 14th Amendment.
Can Birthright Citizenship Be Ended by Executive Order?
The power to regulate citizenship primarily lies with Congress, as outlined in the Constitution. No president has ever attempted to redefine birthright citizenship through an executive order, although Trump has proposed doing so.
In theory, an executive order could redefine the criteria for birthright citizenship, potentially requiring one parent to be a U.S. citizen, a lawful permanent resident, or a member of the military. Such a move would direct federal agencies to deny passports or other official documentation to individuals who fail to meet the new criteria.
Legal experts widely agree that any such executive order would face immediate legal challenges. Courts would likely block its enforcement, citing conflicts with constitutional provisions. Ultimately, the matter could reach the Supreme Court, compelling justices to decide whether the 14th Amendment guarantees birthright citizenship for all U.S.-born individuals.
Amending the Constitution: A Challenging Path
If courts uphold birthright citizenship as a constitutional right, the only way to alter it would be through a constitutional amendment. This process is notoriously difficult, requiring approval by two-thirds of both the House of Representatives and the Senate, as well as ratification by three-quarters of state legislatures. Such an endeavor would likely take years and face significant political hurdles.
Conclusion
The debate over birthright citizenship highlights deep divisions in U.S. immigration policy and constitutional interpretation. While efforts to redefine or eliminate this right may energize political bases, the legal and procedural challenges make such changes highly unlikely in the near future. As this issue continues to unfold, it underscores the enduring complexity of balancing immigration concerns with constitutional guarantees.