President-elect Donald Trump’s plan to end birthright citizenship for all would-be Americans is expected to meet an onslaught of challenges that immigration experts predict the White House will not be able to withstand.
Trump vowed on Sunday in an interview with NBC News Meet the Press anchor Kristen Welker to walk back the 14th Amendment, which automatically gives any person born on U.S. soil American citizenship.
“If we can, through executive action. I was going to do it through executive action [during the first term], but then we had to fix COVID first, to be honest with you. We have to end it. It’s ridiculous,” Trump said.
Trump did not answer Welker’s follow-up questions about the “inevitable” legal challenges.
“We have to get rid of this system. It’s killing our country,” Trump finished.
But the fight against birthright citizenship may not be as easy or straightforward as expected, given that it was an issue Trump attempted and did not succeed at tackling during his first term in office.
First-term attempt to end birthright citizenship
Trump’s doubling down on his plans to end birthright citizenship comes six years after he failed to move on it.
In October 2018, the then-president insisted that birthright citizenship “will be ended one way or the other,” opening the door for congressional action one day after then-House Speaker Paul Ryan said that doing so by executive action was unconstitutional.
“So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree,” Trump wrote in October 2018.
So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree…..
— Donald J. Trump (@realDonaldTrump) October 31, 2018
At the time, Trump also shared a video of former Democratic Sen. Harry Reid stating in 1993 that “no sane country” would allow birthright citizenship.
Trump vowed at the time that any executive action to remake the 14th Amendment would be settled by the Supreme Court.
Challenges over a legal basis
The conservative Heritage Foundation think tank said Trump’s argument was that birthright citizenship was never meant for the children of illegal immigrants.
“President-elect Trump is right. The 14th Amendment was ratified in 1868 to extend citizenship to freed slaves and their children. It was never intended to reward illegal aliens for breaking our laws,” Heritage wrote in a post on X following the NBC interview. “While President-elect Trump can end birthright citizenship by executive order, Congress should exercise its Section 5 powers of the 14th Amendment to permanently end birthright citizenship and prevent the children of illegal aliens from automatically becoming citizens of the United States.”
President-elect Trump is right. The 14th Amendment was ratified in 1868 to extend citizenship to freed slaves and their children.
It was never intended to reward illegal aliens for breaking our laws.
While President-elect Trump can end birthright citizenship by executive order,… https://t.co/5TtW29snKw
— Heritage Foundation (@Heritage) December 8, 2024
Conservatives such as Sen. Mike Lee (R-UT) went after birthright citizenship in Trump’s defense, saying the 14th Amendment only provided that right to people “subject to the jurisdiction” of the U.S.
“@MeetThePress omits six words about birthright citizenship from the 14th Amendment. The omitted text is set off by asterisks: “All persons born … in the United States, *and subject to the jurisdiction thereof,* shall be citizens of the United States,” Lee wrote in a post on X.
🧵1. @MeetThePress omits six words about birthright citizenship from the 14th Amendment
The omitted text is set off by asterisks:
“All persons born … in the United States, *and subject to the jurisdiction thereof,* shall be citizens of the United States”
Those words matter https://t.co/qVYld0O4og
— Mike Lee (@BasedMikeLee) December 8, 2024
Immigration experts from advocacy and legal groups pushed back on Lee and said arguing that an illegal immigrant in the U.S. is not under U.S. jurisdiction would mean that person was not in the country from the get-go.
The American Immigration Council’s Aaron Reichlin-Melnick said the basis that Lee stated would not carry Trump through legal challenges, which could be expected from major human rights groups, such as the American Civil Liberties Union.
“Senator Lee knows better. ‘Subject to the jurisdiction thereof’ means subject to US laws. Here’s none other than conservative luminary and 5th Circuit judge James Ho explaining as much. If an undocumented immigrant wasn’t subject to US jurisdiction, they couldn’t be arrested,” wrote Reichlin-Melnick, AIC senior fellow.
Senator Lee knows better. “Subject to the jurisdiction thereof” means subject to US laws. Here’s none other than conservative luminary and 5th Circuit judge James Ho explaining as much.
If an undocumented immigrant wasn’t subject to US jurisdiction, they couldn’t be arrested. https://t.co/OK40KpWqTk pic.twitter.com/6D1gHPR8h0
— Aaron Reichlin-Melnick (@ReichlinMelnick) December 8, 2024
Former Secretary of State Hillary Clinton pointed out on Monday that birthright citizenship was a long-held right “enshrined in the Constitution.”
Birthright citizenship is enshrined in the Constitution. Trump may want to read it.https://t.co/XapCUNRlY6 pic.twitter.com/vBsngLnjgZ
— Hillary Clinton (@HillaryClinton) December 9, 2024
Implications for US-born children of illegal immigrants
In 2018, Sen. Lindsey Graham (R-SC) pledged to introduce legislation to end birthright citizenship since lawmakers believed then that the matter could be determined through the legislative branch. But the way in which it would happen could be different now.
Trump’s attempt to determine immigration rules through the stroke of a pen could prompt criticism, given that Republicans had criticized former President Barack Obama’s use of executive action to push his immigration agenda after Congress refused to act.
Under Obama, the Department of Homeland Security created the Deferred Action for Childhood Arrivals program, which provides work permits and protection from deportation for those who live in the U.S. illegally and arrive before the age of 18. The program has accepted 800,000 enrollees since 2012, but the Trump administration rescinded it in September 2017, saying it was illegitimate because only Congress could determine immigration levels, not the executive branch.
Other implications include who would be affected, including children in the U.S. Trump said on Sunday that he would not separate parents and children over immigration matters but that he would deport entire families, including those with children who are American citizens.
“I don’t want to be breaking up families, so the only way you don’t break up the family is you keep them together and you have to send them all back,” Trump said.
Additional legal challenges are strongly likely if Trump attempts to remove U.S. citizens from the country.
The U.S. is one of 30 countries out of the total 194 that recognize birthright citizenship even if the child’s parents are noncitizens, whether by a parent on a temporary visa or illegally in the country.
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Trump has historically claimed that babies born in the U.S. to illegal immigrants cost the country billions of dollars.
A 2018 report by the Center for Immigration Studies, a Washington group that advocates lower immigration levels, concluded children born to parents illegally in the country cost U.S. taxpayers $2.4 billion annually.
