WASHINGTON — When Donald Trump took office in 2017, he immediately issued a provocative executive order banning travel from Muslim-majority countries, leading to chaos, confusion and a flurry of lawsuits that ended up in the Supreme Court.
If he wins the elections in November, he has pledged to follow a similar path on another controversial policy proposal: ending birthright citizenship.
Last May, Trump released a campaign video renewing his call to end the long-standing constitutional right, saying he would sign an executive order on the first day of his presidency that would ensure that children born to parents without status legal in the US will not be considered US citizens.
“The United States is among the only countries in the world that says that even if neither parent is a citizen or even legally in the country, their future children are automatic citizens the moment their parents invade our soil,” Trump said in the video.
It has long been understood that birthright citizenship is required by the 14th Amendment to the Constitution, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The language was included in the constitutional amendment enacted after the Civil War to ensure that black former slaves and their children were recognized as citizens.
The phrase has generally been understood by legal scholars of all ideological stripes as self-explanatory, but that hasn’t stopped some anti-immigration advocates from pushing for an alternative interpretation.
“Litigation is a certainty,” said Omar Jadwat, an attorney for the American Civil Liberties Union who was also involved in challenging the travel ban.
“It’s directly against the 14th Amendment,” he added. “It would essentially be an attempt to overturn one of the key constitutional protections that has been a fundamental part of our country.”
The Supreme Court ultimately upheld a watered-down version of Trump’s travel ban, deferring to the president’s authority on national security issues, but even supporters of birthright citizenship accept that Trump’s plan would face a potentially insurmountable uphill battle.
“It’s something the Supreme Court could rule against the president if he takes this action,” said Mark Krikorian, executive director of the Center for Immigration Studies, which supports the idea.
If Trump loses this case, then the next step would be clear, he added: It would take an effort to begin the difficult process of amending the Constitution.
A Trump campaign spokesperson declined to comment on the plan, pointing to the former president’s actions. original ad.
Under Trump’s proposal, at least one parent would need to be a citizen or legal resident for a child to receive citizenship by birth. He indicated in his video that the policy would not be applied retroactively.
The order, Trump said, would also address so-called “birth tourism,” a situation in which Republicans say people visit the U.S. at the end of a pregnancy to ensure the child is born an American citizen.
It is unclear exactly how many children are born each year in the United States to undocumented parents, or how many of them could be described as “born tourists,” in Trump’s formulation.
Krikorian’s group has said previously that there could be up to 400,000 children born each year to undocumented parents and thousands of children born as a result of birth tourism every year.
The American Immigration Council, an immigrant rights group, said it did not have exact numbers, but noted that there are currently about 3.7 million children born in the U.S. who have at least one undocumented parent, a number derived from data from the US census.
A spokesman for U.S. Citizenship and Immigration Services, the federal agency that handles citizenship issues, declined to comment.
Trump promised to end birthright citizenship when he first ran for president in 2015 and lifted it again in 2018. But he never issued an executive order.
At the time, House Speaker Paul Ryan, also a Republican, rejected the idea, saying: “You can’t do something like that through an executive order.”
Despite Trump’s promise, the plan to end birthright citizenship is not specifically mentioned in the 2024 Republican Platform document, which includes a chapter titled “Seal the border and end the migrant invasion.”
The platform includes a linguistic commitment to “prioritize merit-based immigration” and end chain migration, a term used to refer to people who have U.S. citizenship and then use their status to help other family members enter. in the country.
Ken Cuccinelli, who held a senior position at the Department of Homeland Security in the first Trump administration, said the proposal is “politically appropriate and manageable” but did not respond to other questions about how it could be legally implemented.
Cuccinelli wrote the chapter on immigration issues that was included in Project 2025, a proposed roadmap for a second Trump administration issued by the conservative Heritage Foundation. Your section did not mention citizenship by birth.
‘Historical myth’
“As has been established by many scholars, this current policy is based on a historical myth and an intentional misinterpretation of the law by open border advocates,” Trump said of birthright citizenship in his announcement video.
Few people agree with this assessment.
The legal argument, advanced by anti-immigration advocates, centers on the language of the 14th Amendment, which says that birthright citizenship is granted to those “subject to the jurisdiction” of the United States.
Opponents of birthright citizenship say the language means citizenship is denied to anyone whose parents are not legally in the country.
“Illegal aliens can hardly be said to be under the protection of the United States,” said Christopher Hajec, a lawyer with the Immigration Reform Law Institute, another anti-immigration group.
But most legal experts say the jurisdiction’s language refers only to people not bound by U.S. law, particularly foreign diplomats.
Even James Ho, a conservative lawyer Trump appointed to the New Orleans-based 5th U.S. Circuit Court of Appeals, where he built a reputation as a judicial firebrand, supports this view.
He wrote in a 2009 article that the citizenship language of the 14th Amendment applies to “most children of aliens born in the United States, including illegal aliens.”
Being under US jurisdiction only means people are required to obey US laws, Ho said. “And compliance, of course, does not depend on immigration status,” he added.
The Supreme Court has never ruled directly on the issue, but the one case that is frequently mentioned in any discussion of the issue suggested that people born in the US were presumed to have citizenship regardless of their parents’ status.
In this 1898 case, called United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to Chinese parents was an American citizen.
Critics of birthright citizenship argue that the decision did not address whether the children of people who entered the country illegally are U.S. citizens, since the parents in that case had been legally admitted.
In fact, they suggest that the decision assumes that the children of people who enter the country illegally do not have citizenship, although they admit that the argument may be difficult to follow.
“You really need to figure this out,” Hajec said. “It’s a pretty complicated argument.”
If Trump followed through on his plan to issue an executive order on day one, the impact could be felt immediately.
The Trump campaign said the president would order the Social Security Administration to refuse to issue Social Security numbers to newborn children without proof of their parents’ immigration status. He would issue a similar order to the State Department regarding passports.
Krikorian, who said he has not discussed the policy with the Trump campaign, is in favor of that approach because it would not require any action from Congress and would immediately trigger a process that would take the legal issue to the Supreme Court in a short space of time.
In the unlikely event that Trump’s plan goes into effect, it could be difficult to implement because federal agencies don’t necessarily have immigration status at their fingertips and would need to access information not just about the newborn child, but also the data on both. country. Sometimes relevant information can be difficult to determine, such as if the immigration status of one absent parent is not known to the other.
A spokeswoman for the Social Security Administration noted that the agency does not hold data on immigration status, which it must verify with the Department of Homeland Security before issuing a Social Security number to immigrants.
Currently, all you need is a U.S. birth certificate to obtain a Social Security number or passport.
Emma Winger, a lawyer at the American Immigration Council, said Trump’s proposal would affect any child born in the United States, as all parents would now need to take an additional bureaucratic step to ensure their baby is registered as a citizen.
“Everyone relies on the fact that if they are born here, they just need to show proof of birth,” she said. “It would be a radical change.”
This story originally appeared on NBCNews.com read the full story
