Can Donald Trump Stop Birthright Citizenship?

The immigration news in the United States was dominated by a single topic this week: President Trump’s announcement that he intends to end birthright citizenship. He made the claim to the news outlet, Axios, in an interview released in part last Tuesday and fully on Sunday. His exact statement regarding the 14th Amendment’s guarantee of citizenship to individuals born in the United States was, “It’s ridiculous. It’s ridiculous. And it has to end.

In the same interview, President Trump claimed that the United States is, “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years.” This statement was quickly fact-checked and proven false, as there are 30 other countries that grant birthright citizenship, including the rest of North America.

Later, President Trump would claim that he was considering an executive order to end birthright citizenship. A claim that set off a strong response from journalists and immigration lawyers all over the United States.

With the broad, unflinching, and sometimes factually deficient statements coming from the President on birthright citizenship and other immigration issues, we take a look at the legal ramifications and capabilities for ending birthright citizenship and discuss what the President’s statement actually mean for citizens in California.

What Is Birthright Citizenship?

Following the Civil War, the United States passed three crucial amendments to the U.S. Constitution. The 13th Amendment made slavery, otherwise called involuntary servitude, illegal, and the 15th Amendment made racial discrimination for voting rights illegal. It was the 14th Amendment that granted citizenship to anyone born in the United States, including individuals born to former slaves. Birthright citizenship was a necessary step in making millions of African Americans citizens of the United States and remains very important today.

The promise of the 14th Amendment is that a person is a citizen of the United States simply by being born in the country. The wording of the Amendment is, “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.” This right includes individuals born to permanent residents from China or a mother on a working visa from the United Kingdom.

The Pew Research Center estimates that approximately 36,000 children are born through birth tourism each year. These are children born in the United States because of an orchestrated plan to fly a pregnant woman from China, Russia, or elsewhere in the world to give birth in the United States. Another 300,000 to 360,000 children are born each year to undocumented immigrants, which can represent between 7% and 9% of all births in a given year. The exact numbers for 2017 or 2018 are still unavailable.

Does It Matter Birthright Citizenship Is a Constitutional Right?

It matters greatly that birthright citizenship is a right guaranteed by the 14th Amendment. The protection, promise, and strength of the 14th Amendment are equal to the rights guaranteed under the 1st Amendment, regarding freedom of speech and right to assembly, or the 5th Amendment, right to due process.

The federal government and all states are forbidden from passing laws that abridge or infringe on the rights of the 14th Amendment. As well, rights guaranteed under the U.S. Constitution are extremely difficult to overturn or alter. The absolute rights promised by a Constitutional amendment and the arduous process of overturning an amendment make President Trump’s comments appear bold and divisive, but ultimately unlikely to result in overturning birthright citizenship.

Can the President Overturn Birthright Citizenship by Executive Order?

Overturning a Constitutional amendment by executive order wouldn’t just be unprecedented; it would be extreme and outrageous. According to the Republican politician, Paul Ryan, it is “obvious” that the President can’t issue an executive order to end birthright citizenship. That is the response of most legal professionals, including law school professors and immigration lawyers in California. Rather, any change to the 14th Amendment would need to proceed through the lengthy Constitutional channels required to revise, replace, or remove an amendment.

Despite the clear response from lawyers that work in immigration law, the Administration has indicated that it wants to test the validity of an executive order to alter the 14th Amendment and also the application of the 14th Amendment to undocumented or illegal immigrants before the Supreme Court. Vice President, Mike Pence, has even indicated that the court challenge is imminent, stating, “applies specifically to people who are in the country illegally.”

Whether the President’s claim to end birthright citizenship is a ploy before the midterm elections, follow through on a long-ago campaign promise, or a legitimate proposition, our team at Greco Neyland is following the news and potential outcome closely. If you have concerns or questions regarding these issues, you can always contact our office at (213) 295-3500.

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