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PolitiFact FL: Trump is vowing to overturn birthright citizenship. Can he do it?

WLRN Public Media | By Louis Jacobson | PolitiFact
Published December 12, 2024 at 10:34 AM EST
A woman who is in the country illegally plays with her 2-year-old daughter, who was born in the United States but was denied a birth certificate and was fighting that decision in the courts, in Sullivan City, Texas in 2015.
Eric Gay
/
AP
A woman who is in the country illegally plays with her 2-year-old daughter, who was born in the United States but was denied a birth certificate and was fighting that decision in the courts, in Sullivan City, Texas in 2015.

Legal experts say it’s possible, but they add that the quest to overturn birthright citizenship would face high hurdles, even for a Supreme Court that has sided with Trump on other issues.

During his first major interview since winning the 2024 presidential race, Donald Trump reiterated a promise he’s made multiple times: He will try to eliminate birthright citizenship, the longstanding practice of conferring citizenship on anyone born in the United States, even when the parents are noncitizens.

Kristen Welker, host of NBC’s "Meet the Press," asked Trump about the issue during an interview that aired Dec. 8.

Welker: "You promised to end birthright citizenship on day one."

Trump: "Correct."

Welker: "Is that still your plan?"

Trump: "Yeah. Absolutely."

Welker: "The 14th Amendment, though, says that, quote, ‘All persons born in the United States are citizens.’"

Trump: "Yeah."

Welker: "Can you get around the 14th Amendment with an executive action?"

Trump: "Well, we’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it. We’re the only country that has it, you know."

PolitiFact has consistently found that executive action alone, such as a presidential executive order, would not overturn constitutional language. But we’ve also noted that such an order would likely trigger a court battle over the longstanding interpretation that the 14th Amendment guarantees birthright citizenship.

Could such a battle end with the Supreme Court invalidating birthright citizenship? Legal experts say it’s possible, but they add that the quest to overturn birthright citizenship would face high hurdles, even for a Supreme Court that has sided with Trump on other issues.

"I think even this Supreme Court would have a hard time getting around the plain language of the amendment itself, plus later statutory enactments, plus their own precedent," said Frank O. Bowman III, a University of Missouri law professor emeritus. "What seems quite clear is that an executive order cannot override constitutional text or statutory enactment or Supreme Court precedent, and I don't think this Court's pro-executive power tilt affects that assessment."

Here’s an explanation of what birthright citizenship is and what it would take to end it.

Birthright citizenship’s legal underpinnings

The notion of birthright citizenship can be traced to 1608 with Calvin’s Case, a British decision that became part of the common law adopted in the U.S. legal system’s early days. Calvin’s Case granted subjectship — a British concept that has since evolved into citizenship — to all children born in Scotland except those of diplomats and enemy troops in hostile occupation.

Three key pieces of legal precedent underpin birthright citizenship, scholars say.

First, there’s the 14th Amendment, which says that "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 amendment, ratified in 1868, "was unquestionably intended to cover the children of unauthorized migrants, namely the children of enslaved persons brought here by criminals after the prohibition of the slave trade," said Gabriel (Jack) Chin, a University of California, Davis, law professor.

Second, there’s the 1898 Supreme Court decision known as the Wong Kim Ark case. Wong Kim Ark, a laborer, was born in 1873 in San Francisco. His parents were Chinese and lived legally in the United States.

Around age 17, Wong left to visit China and returned to the United States without incident. Then, around age 21, he left again to visit China, but at the end of that trip, he was denied reentry to the United States because the collector of customs argued he was not a U.S. citizen. (This was no small distinction — it was the era of anti-Asian strictures known as the Chinese Exclusion Act.)

In its 6-2 majority decision, the Supreme Court’s justices ruled that Wong — and others born on United States soil, with a few clear exceptions — qualified for citizenship under the 14th Amendment.

"The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens. … The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States," the court’s majority wrote in its decision.

Third, there’s a 1952 statute (8 U.S. Code § 1401) that echoes the 14th Amendment’s language . "The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof," the statute partly reads.

Peter J. Spiro, a Temple University Law School professor, said a strong argument for continuing birthright citizenship is that "that's how we've done it for more than a century now. The historical practice is well entrenched: The children of undocumented parents have always been extended birth citizenship. The practice has been uniform and, until recently, uncontested."

Birthright citizenship also includes people born abroad to U.S. citizens, but Trump has not indicated he would target that provision.

The importance of ‘subject to the jurisdiction thereof’

The wiggle room for universal birthright citizenship’s opponents involves the qualifier "subject to the jurisdiction thereof" — wording that appears in both the constitutional amendment and the statute.

Traditionally, this phrase has been interpreted to exclude only the U.S.-born children of foreign diplomats or of enemy forces engaged in hostilities on U.S. soil. But people skeptical of birthright citizenship’s legal basis have argued that the Supreme Court has never specifically ruled on whether the children of people in the country illegally would qualify for birthright citizenship, as that wasn’t at issue in the Wong Kim Ark case.

The same uncertainty holds for the 14th Amendment’s drafters, legal experts say. "Because there weren't any federal immigration controls at the time the amendment was adopted in 1868, there's no direct evidence how the drafters intended it to apply to that category," Spiro said.

Although Spiro said he doesn’t find their argument especially persuasive, the "subject to the jurisdiction thereof" phrasing gives opponents of birthright citizenship "something to work with."

When we addressed this question in 2018, we noted that a leading skeptic of birthright citizenship was John C. Eastman, then a law professor at Chapman University.

Eastman had written that undocumented immigrants, such as foreign tourists, "are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the Fourteenth Amendment as a precondition for automatic citizenship," he wrote.

Therefore, Eastman argued, the ruling in Wong Kim Ark "does not mandate citizenship for children born to those who are unlawfully present in the United States."

In 2024, a California judge recommended that Eastman be disbarred for actions related to his legal strategy arguing that then-Vice President Mike Pence could have interfered with the Jan. 6, 2021, certification of Joe Biden’s presidential victory. Pence did not interfere, but Eastman’s legal strategy is considered a prelude to the storming of the U.S. Capitol that day by supporters of then-outgoing President Donald Trump. The California Supreme Court will determine whether to follow the disbarment recommendation.

Even in 2018, legal scholars disagreed with Eastman’s logic.

"Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations — unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law," Ilya Shapiro wrote for the libertarian Cato Institute. "The illegal immigrants’ countries of origin can hardly make a ‘jurisidictional’ claim on kids born in America, at least while they’re here. Thus, a natural reading of ‘subject to the jurisdiction’ suggests that the children of illegals are citizens if born here."

Could birthright citizenship be overturned by executive order?

The notion that an executive order could overturn birthright citizenship is dubious, legal experts said.

"If it's mandated by the Constitution, it can only be undone by a constitutional amendment," Spiro said. "If it's mandated by statute, it can only be undone by a subsequent statute. It's only if it's mandated by neither that (a president) could do it by executive order."

The most Trump could do on his own is sign an executive order with the expectation that opponents would sue to block its implementation, University of Pennsylvania law professor Kermit Roosevelt said. Then, birthright citizenship’s fate would be in the courts’ hands, potentially all the way up to the Supreme Court.

The president would effectively be "offering his interpretation" in an executive order, and this "tees up the lawsuit that will get the Supreme Court to rule, once and for all, what it means," said Mark Krikorian, executive director of the Center for Immigration Studies, a group that generally supports tighter immigration.

This type of battle would be analogous to what Biden did in issuing an executive order that lifted a portion of debt for student loan borrowers. Plaintiffs quickly sued to stop Biden’s policy from being carried out, and the Supreme Court blocked Biden’s effort.

Stephen Yale-Loehr, a Cornell Law School professor specializing in immigration law, said that while the Supreme Court generally defers to presidents on immigration matters because they involve sovereignty and foreign affairs, "I don’t see how even this Supreme Court would allow a president to revoke a constitutional amendment through an executive order. Such a ruling would endanger all constitutional amendments."

How might today’s Supreme Court approach the case?

Since we last addressed birthright citizenship in 2023, the Supreme Court has surprised legal observers by granting Trump broad legal immunity for official actions taken while president. Could the court — now one-third filled with Trump’s own appointees, with the possibility of more appointed during his second term — back him up on overturning birthright citizenship?

Legal experts say it’s not impossible. But they also say that such an outcome faces substantial legal obstacles.

"We can’t know for sure, but the issues on which the court deferred to the president were very different from this one, and (were) ones where the text of the Constitution is a lot less clear," said Ilya Somin, a George Mason University law professor.

Bradley Smith, a Capital University Law School professor, cautioned against assuming that the Supreme Court immunity decision means that the conservative justices will support every Trump effort.

The immunity case "has nothing to do with the issues around birthright citizenship," Smith said. "Courts rule on cases against, or for, the president's interest regularly, and it is a mistake to think that decisions represent ‘deference’ or ‘hostility’ to the president as opposed to the justices' thinking on the legal issues involved."

Chin, of the University of California, Davis, said the court’s turn to conservatism "could, theoretically, make a difference." But he added that he considers an overturning of birthright citizenship unlikely.

Spiro said the justices may consider that birthright citizenship’s opponents have failed to make headway in Congress for decades. "No legislative birthright citizenship proposal has even made it out of committee," he said.

PolitiFact Copy Chief Matthew Crowley contributed to this report.

Our Sources

Copyright 2024 WLRN Public Media

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Politics Donald Trumpnatural-born citizensU.S. citizenship
Louis Jacobson | PolitiFact
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