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President Trump kicked his presidency off on Monday, sweeping the nation with a series of executive orders. One such order entitled Protecting the Meaning and Value of American Citizenship, is designed to bring an end to birthright citizenship.
Birthright citizenship is a principle protected by the 14th amendment of the United States Constitution which states that ‘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 amendment was introduced in 1868 in order to ensure that ‘freed, American-born, former slaves’ could be citizens, a right which was previously denied by the US Supreme Court. Additionally, in 1898, the amendment was determined to include children of immigrants, which was certified by the Supreme Court in Wong Kim v Ark United States. The US is not the only country to have this rule – countries such as Mexico and Canada also have birthright citizenship.
It is this element with which Trump and his administration take issue. Trump argues that this protection encourages people to cross the border illegally. If a pregnant woman were to enter the US and give birth to a child while in the country, that child would have birthright citizenship, and be considered a US citizen. In 2018, the Pew Research Centre conducted an analysis on how many births to unauthorised immigrants and found that, in 2016, there were about 250,000 babies born to unauthorised immigrant parents, significantly less than the 390,000 in 2007.
While executive orders are a powerful tool in the President’s toolbox, they do have their limitations, and amending the constitution is not something they are capable of. This means that if President Trump wishes to end birthright citizenship, he won’t be able to do it with an executive order. There are only two ways in which birthright citizenship could end: through an amendment to the constitution, or through the US Supreme Court.
If Trump wishes to go down the constitutional amendment route, he is likely to fail. In order to change the constitution, two-thirds of the Senate, and the House of Representatives would need to propose an amendment. If this step is successful, then it must be ratified by three-quarters of the states. Both steps are likely to fail, however, as the Republicans do not have control over two-thirds of the Senate or House of Representatives, nor three-quarters of the US states. In fact, 22 states have already submitted legal challenges against President Trump’s executive order, making a constitutional amendment seem highly unattainable.
These legal challenges are likely to end up at the Supreme Court who, legally, should side with the 22 democrat-led states, given that most legal scholars agree that overturning birthright citizenship with an executive order would be unconstitutional. While they may overturn Trump’s executive order, this is not President Trump’s only option to strike down birthright citizenship in the Supreme Court.
The Supreme Court’s role is to interpret the US constitution, as they did in the case of Wong Kim v Ark United States, when they allowed birthright citizenship for children born to immigrant parents on US soil. Should a case be brought to the Supreme Court challenging this decision, they could reinterpret the constitution so as to not grant birthright citizenship to all children born on US soil. While one may argue that this could be considered unlikely, it was the 14th amendment that protected abortion under Roe v Wade 1973, and this ruling was overturned by the current Supreme Court in 2022, proving that while unlikely, it is not an impossible thought.
While there may be little doubt that President Trump’s executive order will be overturned, this issue is unlikely to be laid to rest, and will no doubt crop up throughout his time in office. It will not be an easy road ahead for President Trump on this matter, but it would be naïve to assume it’s a complete impossibility.
Image: ‘American Flag‘, Emosoda, 2004 // CC BY-NC 2.0
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