Trump wants to end birthright citizenship for children of illegal immigrants

The president told Axios on HBO that he hopes to change the law with an executive order.

Trump wants to end birthright citizenship for children of illegal immigrants
(Photo by Scott Olson/Getty Images)
  • The 14th Amendment currently guarantees citizenship to any child born on U.S. soil.
  • President Donald Trump hopes to modify the law to prevent children born to illegal immigrants from receiving citizenship, which would theoretically combat the so-called immigration practice of non-residents having "anchor babies."
  • The bold (and likely unrealistic) move comes just before the midterms, and a day after the president sent 5,200 troops to the U.S.-Mexico border to prepare for the arrival of groups of South American migrants, known as "the caravan".

President Donald Trump said in an interview published Tuesday that he plans to sign an executive order to end birthright citizenship in the U.S., which would mean children born on U.S. soil to illegal immigrants would not receive citizenship as they do now.

"We're the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits," Trump told Axios on HBO. "It's ridiculous. It's ridiculous. And it has to end."

Trump is wrong to suggest the U.S. is the only country that offers birthright citizenship, considering 33 nations maintain the practice, which is known as jus soli, or "by the soil". However, he would be right to suggest that the U.S. is an anomaly in the sense that it grants citizenship to more immigrants and has less restrictions on birthright citizenship than other countries.

Can Trump do that?

In short, probably not.

The Constitution grants citizenship to any baby born in the U.S. or the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands) and the U.S. Virgin Islands. This was instantiated with the Constitution's 14th Amendment, also known as the Reconstruction Amendment because it was passed after the Civil War to help former slaves assimilate into the culture. It reads:

"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."

The president cannot change the constitution with an executive order, and any attempt to do would be immediately challenged in the courts. Amending the constitution requires a two-thirds vote in both houses of Congress or a constitutional convention called for by two-thirds of state legislatures.

But it's also possible for the Supreme Court to modify how the country's legal system interprets an amendment. In this case, the court could reverse its previous interpretations and limit birthright citizenship benefits of the 14th Amendment to people who have entered the country legally.

Some conservatives have argued that such an interpretation was what the Supreme Court intended in 1898 when it ruled that Wong Kim Ark, born to Chinese parents in San Francisco, was a citizen because he was born on U.S. soil. The key here, conservatives say, is that Kim Ark's parents were legal residents and therefore it doesn't follow that the court or the drafters of the 14th Amendment ever intended birthright citizenship to apply to illegal immigrants.

"The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity—historically, constitutionally, philosophically and practically," Michael Anton, a former spokesman for Trump's National Security Council, wrote in an opinion piece for The Washington Post in July. "An executive order could specify to federal agencies that the children of noncitizens are not citizens."

Still, the Supreme Court seemed to disagree with Anton in the 1982 case Plyler v. Doe, the only 20th-century case to directly address the question. Justice William Brennan wrote:

"[N]o plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

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