During an interview that aired Sunday, President-elect Donald Trump declared he would “end” birthright citizenship on Day One of his presidency. A debate among legal scholars quickly followed, questioning whether Trump has the authority to do so.
In an interview with NBC’s “Meet the Press,” Trump said he is “absolutely” planning to terminate birthright citizenship for children of unauthorized immigrants. He said he hopes to do so through executive action.
“Well, we’re going to have to get it changed,” Trump said. “We’ll maybe have to go back to the people. But we have to end it.”
What does the Constitution say?
The Citizenship Clause in the 14th Amendment states that “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.”
Congress passed the 14th Amendment just after the Civil War, extending civil and legal rights to freed slaves. This section of the Constitution grants citizenship to all individuals born within the U.S., including the children of unauthorized immigrants, with only limited exceptions, said Amanda Frost, a law professor at the University of Virginia and an expert on immigration and citizenship law.
“The 14th Amendment, as currently interpreted and as been interpreted since it was ratified in 1868, is that it grants citizenship to everyone born in the United States, regardless of who their parents are, with only a couple of narrow exceptions, and those narrow exceptions fall within the language of the 14th Amendment,” Frost said. The exceptions included children of foreign diplomats and children born into Native American tribes.
That second caveat “is no longer a meaningful constraint,” added Ilya Somin, a law professor at George Mason University, “because in the 1920s Congress gave citizenship to all Native Americans who living on tribal land who previously did not have it.”
The groups that were supposed to be excluded “were groups that were not subject to U.S. law,” Somin said.
“On the other hand, unauthorized immigrants or immigrants of every kind are subject to jurisdiction of U.S. law, and therefore they do qualify (for birthright citizenship),” Soman explained.
Can Trump end birthright citizenship?
The short answer repeated by every legal scholar interviewed for this story when asked whether Trump has the power to unilaterally end birthright citizenship: No.
“He doesn’t have that authority, in a legal sense,” said Ediberto Roman, a law professor at Florida International University.
What Trump would attempt to do, via an executive order, “is not changing the meaning (of the 14th Amendment), but rather adopting or putting into effect what he thinks the interpretation should be,” Frost said.
However, Trump — or any president — is unable to repeal any part of the Constitution via executive action, explained Carolina Núńez, a law professor at Brigham Young University and an expert in immigration law and citizenship. “An executive order can’t abolish a constitutional provision, which is what the 14th Amendment is,” Núńez explained. “So certainly, I would imagine that that would be challenged fiercely in court.”
What has the Supreme Court said?
In 1898, the U.S. Supreme Court established precedent in interpreting the 14th Amendment. In its United States v. Wong Kim Ark ruling, the Supreme Court declared that a California-born son of Chinese parents was a U.S. citizen at birth.
“The Supreme Court rejected the government’s attempt to argue that children of foreign-born non-citizens were not subject to the jurisdiction of the United States, and the court said, ‘no, the language is very clear and broad and universal, and it applies to them,” Frost said.
That ruling has been “reaffirmed” by the Supreme Court “in at least two different decisions that recognize birthright citizenship,” Roman added.
What did Sen. Mike Lee say?
In a series of social media posts on Sunday, Sen. Mike Lee argued that Congress could reinterpret the 14th Amendment.
“Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens,” Lee wrote.
Lee referenced a 1993 bill, the “Immigration Stabilization Act,” that would have limited birthright citizenship only to those born to citizens or lawful permanent residents. That bill never received a vote.
“Those who suggest Congress is somehow powerless to limit birthright citizenship ignore important constitutional text giving Congress power to define who among those ‘born in the United States’ is born ‘subject to the jurisdiction thereof,’” Lee wrote.
Legal scholars suggested that Lee is misinterpreting the 14th Amendment and misjudging the role of Congress.
Lee’s claim that unauthorized immigrants and their children are not “subject to the jurisdiction” of the United States “would be a perversion of what the intent was behind the passage of the 14th Amendment,” Roman said.
“That argument runs afoul of what what the intent of Congress was at the time of the passage of the 14th Amendment,” Roman explained. “It is a revisionist attempt to put a qualification on the birthright citizenship. It’s just not there.”
The only exceptions to that clause in the 14th Amendment were the children of diplomats and children of Native Americans, not unauthorized immigrants, Roman said. “The Congressional Record with the passage of the 14th Amendment squarely addressed this point, and that’s what that language was about,” Roman said. “At no point was it ever discussed, or did it ever come up, any qualification to anyone else born in the United States.”
Further, an attempt to allow Congress to interpret the Constitution would violate the U.S. government’s separation of powers. “Ultimately, the court interprets the Constitution,” Núñez said.
If Congress had power to interpret the Constitution, Somin noted, it would have “essentially defeated the whole purpose” of overturning the Dred Scott decision by passing the 14th Amendment.
“If that was true, then it would essentially gut the the provision, because the Congress could have just said, ‘Well, you know, Blacks do not count, because the recently freed Black slaves had not previously been citizens,’” Somin said. “So Congress could limit it by saying only those who are born citizens qualify. … That would have just enabled Congress to bring back Dred Scott under another name, or under a slightly different guise.”
Is ending birthright citizenship possible?
Legal scholars noted two unlikely paths Trump could take to end birthright citizenship.
The first would be by passing a constitutional amendment, which would follow an “arduous process,” Roman said: two-thirds of state legislatures would need to support it, after which a supermajority of Congress — two-thirds of the U.S. House and U.S. Senate — would be required to do the same.
“Those processes are very, very difficult to pass,” Roman said. “It takes usually years, if not decades.”
The second would be to “basically create a test case,” Roman said, by attempting to deport a U.S.-born child of an unauthorized immigrant. The case would be challenged in court, and the Supreme Court would eventually be required to interpret the 14th Amendment.
How would the Court rule? “Obviously, I can’t be completely certain, but I think — I believe that there will be a majority for reaffirming Wong Kim Ark, should the case come before the Supreme Court again,” Somin said.