Why Donald Trump’s bid to end birthright citizenship is easier said than done

‘Born in the USA’ — for centuries, this adage meant certainty of citizenship. However, on Monday (January 20), hours after his inauguration, US President Donald Trump signed off on curtailing birthright citizenship in the United States.

Among the many executive orders he signed on Monday, one curtailing birthright citizenship, starting February 19.

Soon after Trump’s move, different Democrat states and immigrant groups moved the judiciary, attempting to block the order that refuses to recognise the US-born children of unauthorised immigrants as citizens. On Thursday (January 23), a federal judge in Seattle said that Trump’s executive order ending birthright citizenship was “blatantly unconstitutional” and issued a temporary restraining order to block it.

As this saga continues — the US president has said he will “obviously appeal it” — we take a closer look at why Trump’s effort to curtail birthright citizenship won’t be as easy as he thinks.

More from Explainers

Is your house heating up and making you miserable? Paint it white How ChatGPT is becoming everyone’s BFF and why that’s dangerous

What is birthright citizenship?

Before we delve into the challenges that Trump will face in stopping birthright citizenship, let’s understand what it exactly means.

In the US, birthright citizenship — all people born in the country were citizens — took effect following the Civil War. In 1866, the 14th Amendment of the Constitution stated, “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

At the time, it was aimed at establishing full citizenship rights for Black Americans who suffered under slavery.

In 1989, the Supreme Court in its US vs Wong Kim Ark bolstered birthright citizenship when it determined that the 14th Amendment made Wong Kim Ark automatically a citizen because he’d been born in the United States, even though his parents were Chinese immigrants ineligible to become naturalised citizens under the 1882 Chinese Exclusion Act.

Editor’s Picks

1

Donald Trump signs executive order to end birthright citizenship. How will it affect Indians? 2

Trump vows to end birthright citizenship: Will Usha Vance lose her citizenship?

Contrary to Trump’s claim that the US is the only country to implement birthright citizenship, at least 33 countries have birthright citizenship, as per the World Population Review.

What did Trump’s order say on birthright citizenship?

Shortly after Trump’s grand inauguration, he got down to business — signing multiple executive orders, including one blocking birthright citizenship. Speaking on it, the US president said, “It’s ridiculous. We’re the only country in the world that does this.”

In his executive order, Trump is trying to redefine birthright citizenship. As per his order, a child born in the US is not a citizen if:

1. the mother does not have legal immigration status or is in the country legally but only temporarily.
2. the father is not a US citizen or lawful permanent resident.

The order also extends to children born to parents with temporary legal status in the US, such as foreign students or tourists. Moreover, it forbids US agencies from issuing any document recognising such a child as a citizen or accept any state document recognising citizenship.

If Trump’s order is implemented it is expected to impact millions. According to the Pew Centre for Research, in 2022, 1.3 million US-born adults who live with their parents were born to undocumented immigrants.

How some Americans have fought back against Trump’s order?

But, Trump’s executive order faced immediate resistance. Four Democratic-led states moved for an emergency order to halt the US president’s move.

And on Thursday, a federal judge in Seattle — John Coughenour — granted a temporary restraining order, halting enforcement of the policy for 14 days, calling it “unconstitutional”.

In court, the judge, appointed by former US President Ronald Reagan, told Brett Shumate, the Justice Department attorney defending the administration’s position: “I am having trouble understanding how a member of the bar could state unequivocally that this order is constitutional. It just boggles my mind.”

Judge Coughenour added, “I’ve been on the bench for four decades, I can’t remember another case where the question presented is as clear as this one is.”

Reacting to the judge’s decision, Donald Trump said his administration would “obviously” appeal the ruling, while the Department of Justice said it would defend the executive order, which a spokesman said “correctly interprets” the US Constitution.

Why will Trump find it hard to curtail birthright citizenship?

Despite Trump’s desire to do away with birthright citizenship, he will struggle to do so. Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court, was quoted as saying that dismantling the right would be a tall order, regardless of political will.

“It’s a consensus view among legal scholars and lawyers that the 14th Amendment, which states that ‘all persons born’ in the United States ‘are citizens of the United States,’ prevents a president — or Congress — from eliminating birthright citizenship,” he said.

New Jersey Attorney General Matt Platkin told the Associated Press, “The president cannot, with a stroke of a pen, write the 14th Amendment out of existence, period.” Meanwhile, Connecticut Attorney General William Tong said, “The 14th Amendment says what it means, and it means what it says – if you are born on American soil, you are an American. Period. Full stop,” he said.

“There is no legitimate legal debate on this question. But the fact that Trump is dead wrong will not prevent him from inflicting serious harm right now on American families like my own,” he added.

Many others also argue that as it has operated as precedent for more than a century, birthright citizenship is far more entrenched in legal terrain than other rulings such as Roe V Wade.

What happens next in this battle over birthright citizenship?

Most assume this battle will reach the Supreme Court and that’s where it may get tricky. It may be possible that the Supreme Court could agree with Trump’s vision on birthright citizenship — of the six conservative judges, Trump has placed three, while Clarence Thomas and Samuel Alito often concur with the three.

There’s also another argument against birthright citizenship that is gaining traction. It states that the idea of birthright citizenship doesn’t apply in cases of “war or invasion,” and that unauthorised border entries presently constitute such an invasion.

Trump could also call for a constitutional amendment to change the law. Article V of the Constitution provides for amendment when proposed by two-thirds of both houses of Congress or two-thirds of all states and then ratified by three-fourths. However, in today’s deeply polarised times, the likelihood of a constitutional amendment on immigration seems virtually impossible.

With inputs from agencies