Former president Donald Trump has said if he is elected again, he will use an executive order on his first day back in office to end birthright citizenship in the United States.
“As part of my plan to secure the border on Day One of my new term in office, I 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," Trump said in a statement Tuesday.
Trump made the announcement on the 125th anniversary of United States v. Wong Kim Ark, the Supreme Court case that established the constitutional right to birthright citizenship. Birthright citizenship is a legal right to citizenship for all children born in United States territory, regardless of the citizenship of their parents.
Because it is enshrined in a constitutional amendment, a president does not have the authority to reverse it via an executive order. Under the 14th Amendment those “born or naturalized in the United States, and subject to the jurisdiction thereof" are granted citizenship.
While Trump cannot reverse the amendment, legal challenges could redefine U.S. "jurisdiction." As the 14th amendment was adopted to grant citizenship to freed slaves, some anti-immigration proponents argue that it does not apply to immigrants. However, it has been widely accepted to cover immigrants ever since a 1898 Supreme Court case brought by a U.S. citizen with Chinese parents.
In his statement, Trump focused in on the term "jurisdiction," and incorrectly stated that the U.S. has “become one of the few countries in the world to extend citizenship to the children of illegal aliens even if both parents are not citizens nor even legally present in the United States.”
Trump previously threatened to overturn birthright citizenship during his first presidency, but never followed through. It is highly unlikely any court would rule in his favor.
Even judges appointed by Trump have expressed support for birthright citizenship, as James C. Ho, whom Trump appointed to the U.S. Court of Appeals for the 5th Circuit, penned a 2006 article in support of the practice.
"Birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers," he said. “Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution."
