President Donald Trump’s assertion that he can unilaterally end birthright U.S. citizenship is likely to meet stiff resistance in the courts.
The Supreme Court said more than a century ago that, with few exceptions, the Constitution automatically grants citizenship to all children born in the U.S., even if their parents aren’t citizens. Although a handful of legal experts say Congress could pass a law to change that rule, that’s a far cry from the president’s assertion in an interview with "Axios on HBO" that he can do it by executive order.
“There’s an active academic debate over whether mere legislation could change it with respect to illegal immigrants and tourists -- probably not, though there are good arguments on both sides,” said Ilya Shapiro, a senior fellow at the libertarian Cato Institute. “But regardless, it’s not something that can be done by executive action alone.”
The issue turns on the Constitution’s 14th Amendment, enacted after the Civil War to protect the rights of newly freed slaves. The amendment confers citizenship on anyone who is born in the U.S. and is “subject to the jurisdiction thereof.”
In 1898 the Supreme Court said that test was met by the U.S.-born son of Chinese parents who were legal permanent residents in California. The ruling invoked the “ancient and fundamental rule of citizenship by birth within the territory.”
That ruling didn’t address people who entered the country illegally, but the court touched on that subject in a 1982 ruling that required school districts to enroll unauthorized immigrants. In a footnote, the court said “no plausible distinction” could be drawn to disqualify the children of undocumented immigrants from the birthright citizenship provision.
Many scholars, including some prominent conservatives, say the issue is settled.
“According to the best reading of its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is an American citizen,” John Yoo, a former official in President George W. Bush’s Justice Department, wrote last week for the American Enterprise Institute.
University of Virginia law professor Saikrishna Prakash said language in earlier Supreme Court decisions could help Trump make the case that undocumented immigrants aren’t “subject to the jurisdiction” of the United States. But Prakash said Trump can’t change the conventional understanding on his own.
Trump “can’t just decide who is a birthright citizen,” he said. “Those people who believe that they qualify for it are going to get an adjudication from the courts.”