How birthright citizenship could change under Trump
Everyone born in the United States, with limited exception, is a U.S. citizen. The says so.
That鈥檚 the legal reading, over a century old, that Donald Trump says he seeks to scrap on Day 1. The president-elect has pledged to end birthright citizenship for children of unauthorized immigrant parents, so that those children born in the country aren鈥檛 automatically American.
He confirmed the plan in an NBC that aired Sunday.
Why We Wrote This
Donald Trump鈥檚 campaign featured the issue of unauthorized immigrants. On Day 1, he may try to change their children鈥檚 future in the U.S. 鈥� against a century of legal precedent.
鈥淲e have to end it,鈥� said Mr. Trump. He added that he hoped to do so through 鈥渆xecutive action.鈥�
His transition team is starting to draft versions of an executive order, 聽The Wall Street Journal. An ensuing legal fight could end up before the Supreme Court. The Constitution outlines how it can be amended 鈥� and involves approval from both Congress and the states.
The birthright debate isn鈥檛 new. It鈥檚 part of a long-term national grappling over the promise and limits of immigration, and what some analysts see as legal questions left unsettled.
How is automatic citizenship a right?
In the U.S. Constitution, Section 1 of the Fourteenth Amendment leads with this line:
鈥淎ll 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.鈥�
The country鈥檚 concept of citizenship transformed through the Civil War era. In 1857, the U.S. Supreme Court that enslaved people weren鈥檛 U.S. citizens. The reversed that decision, establishing U.S. citizenship for people born here regardless of race or past enslavement.
The act was a stepping stone to the Fourteenth Amendment, which granted citizenship to formerly enslaved people when it was ratified in 1868. Three decades later, the Supreme Court affirmed birthright citizenship in the case .
Born in San Francisco to Chinese parents, Wong Kim Ark was denied entry back into the U.S. after a trip to China on the grounds he wasn鈥檛 a U.S. citizen. In a 6-2 , the justices confirmed that he was.
The Wong Kim Ark ruling has governed the prevailing understanding of automatic citizenship. But some legal minds argue the citizenship clause remains unsettled 鈥� especially for children of unauthorized immigrants. That question wasn鈥檛 addressed in the Wong Kim Ark case, they argue.
During the NBC interview, Mr. Trump repeated the false claim that only the U.S. has birthright citizenship. Several countries do, Canada and Mexico.
Why does President-elect Trump want to restrict automatic citizenship?
Mr. Trump casts it as part of cracking down on illegal immigration that swelled under the Biden administration. This includes removing what Mr. Trump calls an 鈥渋ncentive.鈥�
He spoke of ending automatic citizenship leading up to and during his first term, but he . During his latest campaign, he a video vowing to tackle the task anew as part of securing the border.
On Day 1, 鈥淚 will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship,鈥� he said. 鈥淎t least one parent will have to be a citizen or a legal resident in order to qualify.鈥�
The New York Times聽 last month that Mr. Trump鈥檚 team plans to stop issuing documents like passports and Social Security cards to babies born to unauthorized migrant parents on U.S. soil.
The president-elect has also said he wants to rein in 鈥渂irth tourism,鈥� in which women come from abroad to birth their babies here. Those schemes exist, and fraudulent operations by Chinese nationals have been聽 by the U.S. government. Some Trump critics, however, have called his treatment of 鈥渂irth tourism鈥� xenophobic.
In 2016, the latest year available, around 250,000 babies were born to unauthorized immigrant parents in the U.S., Pew Research Center.
Can Mr. Trump actually change birthright citizenship?
It鈥檚 unclear. Any executive order would likely draw a legal fight, and could end up in the nation鈥檚 top court. One point of debate, which some legal experts say could prove key, is how to interpret who is 鈥渟ubject to the jurisdiction鈥� of the U.S. 鈥� as the law says.
Changing the citizenship clause in the Constitution, however, would require an amendment. That would an approval by two-thirds vote from the U.S. House and Senate, and ultimately a ratification by at least 38 states. The last amendment was added in 1992.
Birthright citizenship is among the 鈥渉allmark pieces of the American experiment,鈥� says Jennie Murray, president of the National Immigration Forum. Restricting this right 鈥渂egins to unwind the definition of what it means to be American,鈥� she says, which could be seen as a step too far for some Trump supporters.
Former immigration judge Andrew Arthur underscores that entering the U.S. without authorization is a crime. The citizenship benefit 鈥渃reates a pull factor,鈥� he says. 鈥淎nd generally, we try to eliminate those incentives from our law.鈥�
Automatic citizenship is a 鈥渜uestion that needs to be resolved in the Constitution,鈥� says Mr. Arthur, law and policy fellow at the Center for Immigration Studies. He notes there鈥檚 already an exception to whom the Fourteenth Amendment citizenship clause applies: children of .
Hiroshi Motomura, co-director of the Center for Immigration Law and Policy at UCLA School of Law, thinks it鈥檚 unlikely the Supreme Court would overturn Wong Kim Ark. That鈥檚 because while possible, he says, that would reverse more than a century of precedent.
