WASHINGTON- President-elect Donald Trump has vowed to end the citizenship rights of babies born in the United States to undocumented parents soon after he takes office next month.
In an interview earlier this month with NBC's “Meet the Press,” Trump said he would try to do so through executive action.
“Yes, we're going to put an end to that, because it's ridiculous,” Trump said.
But getting rid of birthright citizenship, a principle that in the United States dates back to the end of slavery and the 14th Amendment of 1868, is highly unlikely. Here's why:
What is citizenship by birth?
There are two types of citizenship recognized by the United States government: one based on ancestry and another based on place of birth.
The first type grants U.S. citizenship to children born abroad to at least one U.S. citizen parent. The other guarantees that right to anyone born on US soil, except the children of foreign diplomats.
The 14th Amendment grants citizenship to anyone born in the United States. It says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Thirty years after its ratification, the Supreme Court ruled that birthright citizenship applied to those born in the United States to immigrant parents. It has been interpreted to apply regardless of the legal status of the parents.
The case centered on Wong Kim Ark, who was born in San Francisco in 1873 to Chinese parents who were legal permanent residents. He left the United States temporarily at age 21 to visit his parents, who by then had moved back to China. But upon his return, he was denied entry under the Chinese Exclusion Act for not being a citizen. The highest court in the land ruled that the 14th Amendment made Wong a citizen.
How does the United States compare to the rest of the world?
During the NBC interview, Trump mistakenly said that the United States is “the only country that has it.” In fact, more than 30 countries recognize birthright citizenship, most of them in the Western Hemisphere. Most countries in the world recognize citizenship by descent.
Sam Erman, a University of Michigan law professor who studies citizenship, said the fact that the United States models birthright citizenship is part of the reason more countries have it now.
“If it's based on ancestry, then you can end up with people who spend their entire lives in their country and don't become members, not their children or their children's children,” Erman said.
Birthright citizenship, he said, “functions as a way of ensuring that the people governed in a place are actually part of the place.”
Could Trump put an end to it?
In a post last year on his campaign website, Trump wrote that he would issue an executive order on his first day as president, directing federal agencies to “require that at least one parent be a U.S. citizen or lawful permanent resident.” so that their future children become American citizens.” “automatic American citizens.”
He said the order would clarify that children of undocumented immigrants “should not be issued passports, Social Security numbers, or be eligible for certain taxpayer-funded social benefits.”
On NBC, Trump said he would end birthright citizenship “if we can” through executive action.
Legal scholars generally agree that it is not within the president's executive power to end birthright citizenship, leaving the courts or a constitutional amendment as the only ways to bring about change.
Amending the Constitution is a rigorous process with a high bar that would require approval by two-thirds of both houses of Congress and ratification by three-quarters of each state legislature or state convention.
Targeting “anchor babies” and “birth tourism,” Trump planned to sign an executive order that would end birthright citizenship for the children of immigrants during his first term. But he sidestepped the issue by issuing a rule to deny visas to pregnant women if they appeared to be coming to the United States primarily to give birth.
Republicans have also introduced bills in Congress to end birthright citizenship, although none have passed. In September, Sen. Lindsey Graham (R.S.C.) introduced the Birthright Citizenship Act of 2024, which would end birthright citizenship for children of undocumented immigrants and tourists.
Following Trump's recent comments, Graham said he is also working on a constitutional amendment to end the practice, which he has openly opposed for decades.
“One of the most valuable assets in the world is American citizenship,” Graham said during a news conference to introduce his bill. “I can understand why almost everyone would want to come to the United States and be a citizen. But we must have an orderly process when it comes to granting US citizenship. “We have to have a process that is not exploited.”
Graham has said the Supreme Court will likely take up the case, noting that there has never been a high court ruling involving birthright citizenship cases in which the parents are undocumented or on temporary visas.
But Erman, the Michigan law professor, said it is unlikely that even the conservative-leaning court will act to end birthright citizenship.
“Wong Kim Ark was decided by a court that was quite anti-minority and quite conservative, and even there the text and the history are really clear,” he said. “If Wong Kim Ark could win in 1898, it seems that the precedent should be able to hold in 2024.”
What opposition would Trump face?
Any move to end birthright citizenship is sure to face legal challenges.
“Citizenship is both a set of rights and a form of belonging. “I think saying that these people who are citizens are not really Americans does a lot of harm,” Erman said.
Immigration experts have warned that repealing birthright citizenship would cause the number of people in the United States illegally to skyrocket. Democratic lawmakers have expressed opposition following Trump's recent comments.
“That concept of birthright citizenship is like the backbone of the United States. It is a big part of our nation's history and it must continue that way,” Rep. Adriano Espaillat (D-N.Y.) said on CNN.
Even some Republicans have disagreed with Trump. Then-House Speaker Paul Ryan broke with Trump in 2018 when he said the president could not end birthright citizenship through an executive order.
“As a conservative, I believe in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very long constitutional process,” he said. “But what we obviously agree with the president on completely is addressing the root of the problem, which is uncontrolled illegal immigration.”
