US president Donald Trump revealed today (Oct. 30) that he plans to terminate birthright citizenship with an executive order. He told Axios on HBO that the practice of recognizing as an American any child born on US soil, regardless of their parents’ immigration status, is “ridiculous” and that “it has to end.”
Trump contends that he doesn’t need a constitutional amendment to change the current standard, which is set out in the 14th Amendment of the US Constitution, adopted in 1866. The text provides that “[a]ll 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.”
Thus, many constitutional law scholars will argue that Trump’s effort is not only misguided but doomed to fail because it contradicts the amendment. And since the order will almost immediately be challenged in court, it will likely be stayed, or suspended, pending judicial review.
While the amendment was passed in 1866 and wasn’t written by the original framers of the Constitution—whose thinking originalists worship but whom did not address the question of precisely who might be a US citizen—it will still be a very tall order for the president to convince the high court to simply set aside the text for his interpretation. The justices have never been presented with a case that specifically addresses whether birthright citizenship applies to a child of undocumented immigrants, and an executive order to reinterpret the amendment would no doubt lead to such a case. But it’s not at all a sure bet that, even with a predominantly conservative bench, the president’s interpretation of the law will prevail.
Judge James C. Ho on the Fifth Circuit Court of Appeals in New Orleans, a Trump appointee, believes that changing how the amendment is applied would be unconstitutional. Ho wrote in 2006 that at the time of its passage “no Senator disputed the meaning of the amendment with respect to alien children.”
The conservative judge’s view is important because executive orders are subject to judicial review to ensure they don’t run afoul of the constitution. In fact, the Constitution is what gives Trump the power to issue orders to begin with. And it will be difficult for the president, who has made much ado about ensuring that his Supreme Court appointees are originalists who adhere to the text of the constitution, to make a winning case for ignoring the plain meaning of the 14th Amendment’s words.
Trump’s view does have some support, of course. In a July 18 Washington Post (paywall) editorial, Michael Anton, a former national security official, wrote, “The notion that simply being born within the geographical limits of the United States automatically confers US citizenship is an absurdity—historically, constitutionally, philosophically, and practically.”
He argues that the case for birthright citizenship “is based on a deliberate misreading of the 14th Amendment,” noting that it was intended to resolve the question of citizenship for newly freed slaves. The current interpretation the amendment as providing birthright citizenship for children of undocumented immigrants only took hold in the 1960s, Anton argued. Subsequently, he added in a blog post responding to critics of the editorial, “The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.”
Still, if Trump does now issue an executive order calling for a new interpretation, the American people also won’t knowingly adopt the president’s view. The matter will be reviewed in the courts and arguments about interpreting the text and original intent, and a consideration of the context in which this question now arises, will ultimately determine whether birthright citizenship survives.
The president claims that the US is the only nation that’s as generous with citizenship. And it’s true that other countries, which once provided birthright citizenship, like France and England, have changed their approach in recent decades. But it’s incorrect to argue that this privilege, which stems from the ancient Roman law of jus soli, meaning “right of the soil,” is offered solely in the US. Nor is it at all obvious that Trump’s effort will be popular or successful given the plain meaning of the words of the 14th Amendment and the fact that the notion today remains a nation of immigrants.