In the wake of Donald Trump’s election as President, his team is actively contemplating various strategies to deliver on his longstanding pledge to abolish birthright citizenship. This directive, enshrined in the 14th Amendment of the U.S. Constitution, has sparked significant debate and could lead to a complex legal battle culminating in a Supreme Court review. The prospects of legally altering an entrenched constitutional right raises concerns about civil liberties and the balance of power between branches of government. Trump, who has consistently criticized the birthright citizenship provision, has suggested various approaches, including executive action, to challenge its current application.
During a conversation with NBC’s Kristen Welker, Trump reiterated his belief that the United States is among the few countries granting automatic citizenship to anyone born on its soil, a claim proven false by numerous countries that provide similar rights. He subtly hinted at his intent to address the issue through executive measures after prioritizing the handling of the COVID-19 pandemic, which demonstrates the urgency he places on this controversial subject. Furthermore, his allies are reportedly formulating tactics to facilitate the shift, including measures targeting children of undocumented immigrants by potentially denying them passports and tightening tourist visa restrictions to curb “birth tourism.”
The strategy discussions reflect an awareness of the inevitable pushback any such actions might provoke. Trump’s allies are already preparing for a legal backlash, recognizing that the trajectory of this issue will likely lead to a confrontation with the Supreme Court. One insider noted that a legal contention is unavoidable, and initial movements to change or reinterpret the legal framework around birthright citizenship will trigger a larger dispute.
Many supporters of ending birthright citizenship contend that the 14th Amendment has been mischaracterized and does not pertain to children born in the U.S. to undocumented immigrants. They argue, echoing the sentiments of some immigration hardliners, that these children are not fully “subject to the jurisdiction” of the U.S. and should not be granted citizenship. This interpretation runs counter to the established understanding of the Amendment, which has historically provided citizenship to a wide array of individuals born on American soil.
Opponents of Trump’s stance argue that denying birthright citizenship would have wide-reaching implications. Research shows that approximately 4.4 million U.S.-born children live with undocumented parents, revealing the human element of this legal debate. While supporters of the proposal believe it could be executed quickly, some analysts suggest that the Trump team is prepared for a drawn-out legal process, knowing they will likely need to argue their case before the Supreme Court.
Achieving such legal review is not assured since the Court typically declines cases without circuit disagreements. However, if the administration challenges lower court decisions regarding birthright citizenship, the Supreme Court could be compelled to react. Legal experts assert that if the Court does engage, it could also address the matter through statutory interpretation rather than constitutional grounds, potentially sidestepping broad judgments on citizenship rights.
Legal analysts like Steve Vladeck recognize the precarious nature of pursuing this issue in the Supreme Court, stating that any substantial legal changes would require overcoming decades of established precedent. Court decisions from 1898 and 1982 affirm that the 14th Amendment applies to children born in the U.S., further complicating Trump’s objectives.
Cody Wofsy from the ACLU Immigrants’ Rights Project expressed confidence that their established legal arguments rooted in the Constitution and historical context would prevail against attempts to alter birthright citizenship. Democratic Attorneys General across the United States are gearing up for legal challenges as well, underscoring the divisive nature of Trump’s proposals. New Jersey’s Attorney General and California’s Attorney General have voiced strong opposition to the administration’s anticipated strategies, indicating a broader coalition aimed at preserving established rights.
Legal commentators emphasize that overturning birthright citizenship would not just constitute a legal shift; it would represent a fundamental change in how the nation embodies its principles of democracy. The 14th Amendment fundamentally shapes America’s identity as a nation that offers citizenship based on birthplace, reflecting an inclusive ethos essential to the nation’s character. In this context, any efforts to redefine citizenship could face significant resistance, challenging the fabric of American jurisprudence and its historical understanding of citizenship rights.
