President-elect Donald Trump has expressed his desire to abolish birthright citizenship, a move he positions as part of his broader agenda to reform immigration policies and redefine American identity.
However, any effort to overturn this long-standing policy would likely face considerable legal obstacles.
Birthright citizenship automatically grants U.S. citizenship to anyone born on American soil, regardless of their parents’ immigration status. This provision has been in place for decades, covering children born to undocumented parents or those in the country temporarily, such as tourists or students.
Although not all nations adopt this practice, Trump and his supporters argue that it is often exploited and advocate for stricter standards for attaining U.S. citizenship.
On the other hand, critics maintain that birthright citizenship is a constitutional guarantee under the 14th Amendment, making its repeal exceedingly difficult. Even if it were possible, many believe that such a move would have harmful consequences.
Read More: How the 14th Amendment’s Assurance of Birthright Citizenship Transformed America
Let’s explore the concept of birthright citizenship, Trump’s views on the topic, and the likelihood of its elimination:
Trump’s Stance on Birthright Citizenship
In a recent interview with NBC’s Meet the Press, Trump reiterated his commitment to abolishing birthright citizenship once he assumes office.
“We’re going to put an end to that because it’s absurd,” he declared with conviction.
Trump and his supporters argue that birthright citizenship encourages illegal immigration and contributes to “birth tourism,” where expectant mothers enter the U.S. specifically to give birth, securing citizenship for their children before returning to their home countries.
“Simply entering the country and having a baby should not confer citizenship,” said Eric Ruark, research director at NumbersUSA, an organization that advocates for reduced immigration. This group supports reforms that would require at least one parent to be a legal resident or U.S. citizen for their children to automatically receive citizenship.
Conversely, many argue that ending birthright citizenship could lead to significant negative impacts for the country.
“One of the key benefits we have is that individuals born here are citizens and not part of an unauthorized underclass. This promotes better integration and assimilation of immigrants and their offspring due to birthright citizenship,” stated Alex Nowrasteh, vice president of economic and social policy studies at the pro-immigration Cato Institute.
In 2019, the Migration Policy Institute estimated that around 5.5 million children under 18 had at least one parent who was undocumented, representing roughly 7% of the child population in the U.S. Most of these children were U.S. citizens.
The nonpartisan think tank cautioned during Trump’s 2015 presidential campaign that repealing birthright citizenship could significantly increase the number of individuals living in the U.S. illegally, perpetuating a cycle of exclusion from social membership for generations.
Legal Framework
Following the Civil War, Congress ratified the 14th Amendment in July 1868, affirming citizenship for all individuals, including Black Americans.
The 14th Amendment 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.” It also mandates that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
However, the 14th Amendment has not always guaranteed birthright citizenship for everyone. For example, it wasn’t until 1924 that Congress granted citizenship to all Native Americans born in the U.S.
Read More: What the Constitution Truly States About Birthright Citizenship
A landmark case regarding birthright citizenship occurred in 1898 when the U.S. Supreme Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants, was a U.S. citizen based on his birthplace. The federal government sought to deny him reentry after a trip abroad, citing the Chinese Exclusion Act.
Nonetheless, some argue that the 1898 ruling specifically pertained to children of legal immigrants and may not apply to those born to undocumented parents or those visiting temporarily on tourist visas.
“That ruling is a leading case on this issue. It’s the only one of its kind,” remarked Andrew Arthur, a fellow at the Center for Immigration Studies, which advocates for stricter immigration policies. “The legal question is more fluid than most people realize.”
Some advocates for immigration restrictions argue that the phrase “subject to the jurisdiction thereof” in the 14th Amendment allows the U.S. to deny citizenship to children born to individuals who are undocumented. Trump himself echoed this language in a 2023 announcement regarding his plans to end birthright citizenship if re-elected.
Potential Actions by Trump and Their Chances of Success
Trump did not provide specifics in his interview about how he would go about eliminating birthright citizenship.
When asked how he might navigate the 14th Amendment through executive action, Trump suggested, “Well, we’ll need to change it. We may need to engage the public. But we must put an end to it.” When pressed about the possibility of utilizing an executive order, he responded, “if possible, through executive action.”
In a 2023 post on his campaign website, Trump elaborated that he would issue an executive order on his first day in office, requiring federal agencies to ensure that at least one parent must be a U.S. citizen or lawful permanent resident for their future children to automatically gain U.S. citizenship.
The campaign also stated that this executive order would clarify that children of individuals in the U.S. illegally “should not be issued passports, Social Security numbers, or qualify for certain taxpayer-funded welfare benefits.”
Such actions would almost certainly prompt legal challenges.
Nowrasteh from the Cato Institute stressed that the law clearly indicates that birthright citizenship cannot be abolished through executive order, but Trump may still attempt to contest it in court.
“I don’t take his comments very seriously. He has been making these claims for nearly a decade,” Nowrasteh noted. “During his previous presidency, he made no real progress on this agenda. The law and judicial system largely oppose his legal theory that children of illegal immigrants born in the U.S. are not citizens.”
While Trump could urge Congress to pass legislation to eliminate birthright citizenship, such a law would likely encounter constitutional hurdles.
—Santana reported from Washington. Associated Press reporter Elliot Spagat in San Diego contributed to this report.
