Don’t Worry, President Trump Cannot End Birthright Citizenship with a Stroke of His Pen

The big news this week is an interview with President Trump in which he indicated that he wants to end the practice of “birthright citizenship.”  Birthright citizenship means that anyone born in the U.S. (with very limited exceptions) automatically is a U.S. citizen at birth.

In his interview for “Axios on HBO,” President Trump stated, “it was always told to me that you needed a constitutional amendment. Guess what? You don’t.”  The President went on to say that he could actually make a change to the birthright citizenship rule by executive order.  An executive order is a rule issued by the President which has the force of law and instructs the executive branch how to act.

President Trump very likely is wrong in his understanding of this issue.  The 14th Amendment to the U.S. Constitution states: “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 vast majority of legal scholars believe that this sentence in the Constitution plainly means that all persons born within the U.S. are citizens, regardless of their parents’ immigration status.

A few legal scholars, however, point to the phrase “and subject to the jurisdiction thereof” and argue this excludes children of nonimmigrants (such as tourists and those on student or work visas) and of persons not lawfully present in the U.S.  However, Members of Congress at the time the 14th Amendment was ratified in 1868 made clear that this wording applied only to Native Americans living on reservations — then considered members of their own separate tribal nations — and children of foreign diplomats. (Congress made all Native Americans citizens in 1924).

Even if the President is correct in his reading of the 14th amendment, he still cannot make a change to birthright citizenship on his own by executive order.  This is because, in addition to the 14th Amendment, Congress has passed a law, Section 1401 of the Immigration and Naturalization Act, which states: “the following shall be . . . citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof.”  Since Congress passed a law largely codifying the 14th Amendment, the President is not free to change that law on his own.

Leaders in President Trump’s own political party have also made clear that the President cannot change this rule on his own.  For example, Republican House Speaker Paul Ryan told a radio station in Kentucky “You cannot end birthright citizenship with an executive order.  We didn’t like it when [President] Obama tried changing immigration laws via executive action, and obviously, as conservatives, we believe in the Constitution.”

Given the apparently plain language of the 14th Amendment and the fact that Congress then adopted that same language in a law defining who is a citizen, it is a certainty that any executive order by the President on this issue will immediately be challenged in Court.  It seems very likely that a federal judge would put a hold on any executive order pending the outcome of the case.

President Trump has not changed the law on birthright citizenship and almost certainly cannot do so on his own.  Doing so would require an amendment to the Constitution, which is a very difficult and lengthy process.

Contact a Virginia Immigration Attorney.

President Trump’s actions on immigration make this a scary time for all immigrants in the U.S.—both legal and illegal.  If you have questions about your status or how to make yourself legal so you don’t get caught up by President Trump’s changing rules, please contact the office of Virginia immigration lawyer Jeffrey Van Doren.