President Trump declared on Monday (20) that his administration would no longer treat the children of undocumented individuals born in the U.S. as citizens, signaling his intention to essentially ignore the constitutional guarantee of birthright citizenship, in a move that will certainly be legally challenged.
His executive order instructed federal agencies not to issue birth certificates for such children, starting in 30 days. This measure goes against a guarantee enshrined in the U.S. Constitution for over 150 years, that anyone born in the United States is automatically an American citizen.
In the order, Trump stated that he would interpret the 14th Amendment differently than it has been in the past, arguing that it “never declared to extend citizenship universally to all born in the United States.”
Trump has long said that granting American citizenship to the children of undocumented immigrants is unacceptable. However, since birthright citizenship is guaranteed by the 14th Amendment to the Constitution, such an order will face significant legal challenges. Any change to the Constitution requires supermajority votes in Congress and then ratification by three-quarters of the states.
The Constitution guarantees birthright citizenship
The 14th Amendment, ratified in 1868, 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.”
The jurisdiction clause creates a very narrow exception that has so far essentially applied only to the children of accredited foreign diplomats. Other than that, the citizenship or immigration status of a person’s parents has never affected this right.
Trump does not have the power to abolish birthright citizenship alone
A president cannot amend the Constitution alone, and any executive order to restrict or abolish birthright citizenship will certainly be challenged in court as a violation of the 14th Amendment.
Trump is interpreting the language of jurisdiction in the amendment to exclude “the children of illegal foreigners born in the United States.” So far, the academic and legal consensus has been that such an interpretation would have little to no chance of prevailing in court.
Critics of birthright citizenship say it encourages immigration
The Migration Policy Institute estimates that in 2019, about 4.7 million children born in the United States under the age of 18 lived with one undocumented parent — about 7% of all children in the United States. Studies have found that the vast majority of these children did not cross the border in utero. The Pew Research Center estimated in 2022 that about five in six American children of unauthorized immigrants were born two years or more after their parents entered the United States.
Whether raised in the United States or abroad, American children of non-citizen parents can, upon turning 21, sponsor family members for legal permanent residency, just as any other American citizen could — a practice ridiculed by critics as “chain migration.” Family sponsorship has been a feature in the stories of tens of millions of immigrants in the United States over the last century.
Source: The New York Times