December 2nd, 2019
Can Trump End Birthright Citizenship?
Since the infancy of his presidential campaign, President Trump has touted the idea of ending automatic American citizenship for babies born in the United States. Last week he reiterated his position, stating that his administration is again, “seriously considering” ending birthright citizenship, calling the policy “frankly ridiculous.” In the past, the President has proposed that he would end birthright citizenship by executive order. The move, however, would be directly at odds with the U.S. Constitution and Supreme Court precedent.
Before the civil war, citizenship extended only to “aliens being free white persons,” categorically excluding “indentured servants, slaves, and most women.” The 14th Amendment of the Constitution was added after the civil war, extending citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.” With the exception of certain children born to foreign diplomats or in unincorporated territories, the 14th Amendment has consistently been interpreted to apply to all persons born in the United States, regardless of parentage.
The right to citizenship at birth for children of foreign nationals was further interpreted in the 1898 Supreme Court decision of United States v. Wong Kim Ark. The Court held that Wong Kim Ark was a United States citizen, regardless of being born to two Chinese parents, because he was born in the United States. In a lengthy decision outlining the common law principles of birthplace and allegiance to the crown of England, the Court reasoned that, “the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”
The longstanding precedent behind birthright citizenship in the United States is too strong to be overturned by an executive order. Eliminating birthright citizenship for children of certain immigrants would require a Constitutional amendment. To amend the Constitution, the President would need approval from two-thirds of both the House and the Senate. Therefore, while the President has threatened the eliminating birthright citizenship on numerous occasions, the reality of doing so remains far-fetched, at best.