Donald Trump plans to end birthright citizenship if he becomes president on January 20. His announcement has reignited debates about immigration and constitutional law.
Birthright citizenship ensures anyone born in the U.S. is a citizen. It stems from the 14th Amendment, added to the Constitution in 1868. The Citizenship Clause 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.”
The Immigration and Nationality Act of 1952 reinforces this principle. Under current law, children of immigrants, whether legal or illegal, automatically gain U.S. citizenship. Trump has criticized this, pointing to cases where foreign women travel to the U.S. just to give birth.
Yes, there are exceptions. Children born to foreign diplomats with immunity do not receive U.S. citizenship. This is because they are not subject to U.S. jurisdiction.
The Supreme Court has not ruled on whether children of undocumented immigrants qualify for birthright citizenship. However, past cases provide some insight.
In 1898, the Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants legally residing in the U.S., was a citizen. This decision came despite strict immigration policies against Chinese nationals.
In contrast, an 1884 case denied citizenship to John Elk. He was born into a Native American tribe and was deemed not subject to U.S. jurisdiction. Later, in 1924, Congress granted citizenship to all Native Americans.
Opponents argue that the phrase “subject to the jurisdiction” excludes children of undocumented immigrants. Republican senators Lindsey Graham and Tom Cotton have proposed bills to redefine birthright citizenship. They want to exclude children born to parents illegally in the U.S.
However, many legal scholars reject this view. They emphasize that undocumented individuals, unlike diplomats, are subject to U.S. laws.
Donald Trump has suggested he could end birthright citizenship with an executive order. No president has ever attempted this. Still, Trump might issue an order requiring one parent to be a U.S. citizen, permanent resident, or military member.
Such an order could deny passports or benefits to those who do not meet these new criteria. Yet, courts would likely block it immediately.
If Trump issues an executive order, legal challenges will follow. This could send the issue to the Supreme Court for a final decision.
If the Court upholds birthright citizenship, only a constitutional amendment could change it. Such an amendment would need approval from two-thirds of Congress and three-fourths of state legislatures. This process would take years.
Trump’s proposal highlights his tough stance on immigration. While it has sparked intense debate, implementing such a change faces significant legal and constitutional hurdles. For now, birthright citizenship remains a cornerstone of U.S. law.
