Trump threatens to cut birthright citizenship

President-elect promises to end birthright citizenship, threatening the rights of millions of Latinos born in the US

President-elect Donald Trump has vowed to end birthright citizenship as soon as he takes office to fulfill campaign promises aimed at restricting immigration and redefining what it means to be an American.

But any effort to stop the policy would face major legal obstacles.

Birthright citizenship means that anyone born in the United States automatically becomes an American citizen. It has been in effect for decades and applies to children born to someone in the country illegally or in the U.S. on a tourist or student visa who plans to return to their home country.

It is not a practice in all countries, and Trump and his supporters argue that the system is being abused and that there should be stricter standards for becoming an American citizen.

But others say this is a right enshrined in the 14th Amendment to the Constitution, would be extremely difficult to overturn, and even if it were possible, it’s a bad idea.

Here’s a look at birthright citizenship, what Trump said about it, and the prospects for ending it:

What did Trump say about birthright citizenship?

During a Sunday interview on NBC’s Meet the Press, Trump said he “absolutely” planned to discontinue birthright citizenship when he took office.

“Let’s get this over with because it’s ridiculous,” he said.

Trump and other opponents of birthright citizenship have argued that it creates an incentive for people to come to the U.S. illegally or to participate in “birth tourism,” in which pregnant women enter the U.S. specifically to give birth, so that their children can obtain citizenship before returning to their countries of origin.

“Simply crossing the border and having a child should not entitle anyone to citizenship,” said Eric Ruark, director of research at NumbersUSA, which advocates for reducing immigration. The organization supports changes that would require at least one parent to be a legal permanent resident or U.S. citizen for their children to automatically obtain citizenship.

Others argued that ending birthright citizenship would deeply harm the country.

“One of our great benefits is that people born here are citizens, they are not an illegal underclass. There is better assimilation and integration of immigrants and their children because of birthright citizenship,” said Alex Nowrasteh, vice president of economic and social policy studies at the pro-immigration Cato Institute.

In 2019, the Migration Policy Institute estimated that 5.5 million children under the age of 18 were living with at least one parent in the country illegally in 2019, representing 7% of the U.S. child population. The vast majority of these children were US citizens.

The nonpartisan think tank said during Trump’s 2015 campaign for president that the number of people in the country illegally would “increase” if birthright citizenship was revoked, creating “a self-perpetuating class that would be excluded from social membership for generations.”

What does the law say?

After the Civil War, Congress ratified the 14th Amendment in July 1868. This amendment guaranteed citizenship to everyone, including black people.

“All persons born or naturalized in the United States and subject to their jurisdiction are citizens of the United States and of the State in which they reside,” says the 14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

But the 14th Amendment didn’t always translate into everyone receiving birthright citizenship. For example, it wasn’t until 1924 that Congress finally granted citizenship to all Native Americans born in the US.

A key case in the history of birthright citizenship occurred in 1898, when the US Supreme Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants, was a US citizen because he was born in the states. The federal government attempted to deny him re-entry into the county after a trip abroad, claiming he was not a citizen under the Chinese Exclusion Act.

But some have argued that the 1898 case clearly applies to children born to parents who are legal immigrants to America, but that it is less clear whether it applies to children born to parents without legal status or, for example, who come to a short-stay visa, such as a tourist visa.

“That’s the main case about this. In fact, it’s the only case on this,” said Andrew Arthur, a fellow at the Center for Immigration Studies, which supports immigration restrictions. “It’s a much more open legal question than most people think.”

Some proponents of immigration restrictions have argued that the words “subject to the jurisdiction thereof” in the 14th Amendment allow the U.S. to deny citizenship to babies born to people who are in the country illegally. Trump himself used this language in his 2023 announcement that he would seek to end birthright citizenship if he were reelected.

So what could Trump do and be successful?

Trump did not make clear in his Sunday interview how he intends to end birthright citizenship.

Asked how he could get around the 14th Amendment with executive action, Trump said: “Well, we’re going to have to change that. Maybe we have to go back to the people. But we have to put an end to this.” Pressed further on whether he would use an executive order, Trump said “if we can, through executive action.”

He went into much more detail in a 2023 post on his campaign website. In it, he said he would issue an executive order on the first day of his presidency making clear that federal agencies “require that at least one parent be a U.S. citizen or lawful permanent resident in order for their future children to become automatic U.S. citizens.”

The Trump campaign wrote that the executive order would make clear that children of people who are in the U.S. illegally “should not receive passports, Social Security numbers or be eligible for certain taxpayer-funded welfare benefits.”

This would almost certainly end in litigation.

Nowrasteh of the Cato Institute said the law is clear that birthright citizenship cannot be terminated by executive order, but that Trump may be inclined to try anyway in the courts.

“I don’t take his statements very seriously. He’s been saying things like this for almost a decade,” Nowrasteh said. “He did nothing to advance this agenda when he was president before. The law and judges are almost uniformly opposed to his legal theory that children of illegal immigrants born in the United States are not citizens.”

Trump could get Congress to pass a law to end birthright citizenship, but he would still face a legal challenge that it violates the Constitution.

With information from Time*