WASHINGTON – President-elect Donald Trump has vowed to end the right to citizenship for babies born in the U.S. to undocumented parents soon after he takes office next month.
In an interview earlier this month with NBC's “Meet the Press” Trump said he would try to accomplish that through executive action.
“Yes, we’re going to end this because it’s ridiculous,” Trump said.
But abolishing citizenship by birth, a principle that can be traced in the US to the end of slavery and the 14th Amendment in 1868, is highly unlikely. Here's why:
What is Citizenship by Birth?
There are two types of citizenship recognized by the U.S. government: one based on ancestry and another based on place of birth.
The first type grants U.S. citizenship to children born abroad who have at least one U.S. citizen parent. The other guarantees this right to everyone born on U.S. soil, except the children of foreign diplomats.
The 14th Amendment grants citizenship to anyone born in the United States. It states: “All persons born or naturalized in and subject to the jurisdiction of the United States are citizens of the United States.”
Thirty years after its ratification, the Supreme Court ruled that birthright citizenship applies to those born in the United States to immigrant parents. It has been interpreted to apply regardless of a parent's legal status.
The case focused on Wong Kim Arkwho was born in San Francisco in 1873 to Chinese parents who were legal permanent residents. At the age of 21, he temporarily left the United States to visit his parents, who had since returned to China. But upon his return, he was denied entry under the Chinese Exclusion Act on the grounds that he was not a citizen. The country's highest court ruled that the 14th Amendment made Wong a citizen.
How does the US compare to the rest of the world?
During the NBC interview, Trump falsely said the US was “the only country that has it.” Actually, more than 30 countries recognize birthright, most of them in the Western Hemisphere. Most countries in the world recognize citizenship based on descent.
Sam Erman, a law professor at the University of Michigan who studies citizenship, said the U.S. model of birthright citizenship is one reason there are now more countries.
“If it's based on ancestry, then it may happen that there are people who spend their entire lives in your country and don't become members – and their children and their children's children,” Erman said.
Firstborn citizenship, he said, “works to ensure that the people who are governed in a place are actually part of the place.”
Could Trump end it?
In one Post last year on his campaign websiteTrump wrote that on his first day as president he would issue an executive order directing federal agencies to “require that at least one parent be a U.S. citizen or lawful permanent resident so that their future children automatically become U.S. citizens.” .
He said the order would make clear that children of undocumented immigrants “should not be issued passports or Social Security numbers, nor should they be eligible for certain taxpayer-funded welfare benefits.”
On NBC, Trump said he would end birthright citizenship “if we can” through executive action.
Legal scholars broadly agree that it is not within the president's executive power to abolish birthright citizenship and that the courts or a constitutional amendment are the only way to effect change.
Amending the Constitution is a rigorous, high-stakes process that would require approval by two-thirds of both houses of Congress and ratification by three-quarters of all state legislatures or state conventions.
Trump targets “anchor babies” and “birth tourism.” planned to sign an executive order that would end the birthright of immigrant children during his first term. Instead, he avoided the topic issue a rule to deny visas to pregnant women if they appear to be coming to the USA primarily to give birth.
Republicans have also introduced bills in Congress to abolish birthright, but none have passed. In September, Sen. Lindsey Graham (R-S.C.) introduced the Birthright Citizenship Act of 2024, which would eliminate birthright citizenship for children of undocumented immigrants and tourists.
After Trump's recent comments, Graham said he was too Working on a constitutional amendment to end the practice he has vocally opposed for decades.
“One of the most valuable assets in the world is American citizenship,” Graham said during a press conference to introduce his bill. “I can understand why almost everyone in the world wants to come to America and become a citizen. But we need an orderly process when it comes to granting American citizenship. We need a process that is not exploited.”
Graham said The Supreme Court would likely hear the case, pointing out that there has never been a Supreme Court ruling on birthright cases where the parents are undocumented or on temporary visas.
But Erman, the Michigan law professor, said it was unlikely that even the conservative-leaning court would seek to abolish birthright.
“Wong Kim Ark was decided by a court that was quite anti-minority and quite conservative, and even there the text and the story are really clear,” he said. “If Wong Kim Ark was able to win in 1898, it seems as if the precedent should hold in 2024.”
What resistance would Trump face?
Any attempt to abolish birthright is sure to pose legal challenges.
“Citizenship is both a set of rights and a form of belonging. To say that these people who are citizens are not real Americans, I think, does a lot of harm,” Erman said.
Migration experts warn that repealing birthright law would cause the number of people staying in the U.S. illegally to skyrocket. Democratic lawmakers have expressed opposition following Trump's recent comments.
“This concept of firstborn citizenship is kind of the backbone of America. It is an essential part of our nation’s history and should be continued as such,” said Rep. Adriano Espaillat (DN.Y.) said on CNN.
Even some Republicans disagreed with Trump. Then-House Speaker Paul Ryan broke with Trump in 2018 when he said the president could not end birthright citizenship by executive order.
“As a conservative, I believe in sticking to the plain language of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would require a very, very lengthy constitutional process,” he said. “But where we obviously completely agree with the president is on uncontrolled illegal immigration.”