Immigration and Human Rights Law Review
The Blog
Immigration and Human Rights Law Review
The Blog
Constitutional Law Immigration Law

Can an Executive Order Deny Birthright Citizenship?

by |Published

The Fourteenth Amendment 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.” This guarantees citizenship to many who are born within the United States. This clause extends citizenship regardless of what one’s parents’ ethnicity or legal status is.[1] Originally, the Fourteenth Amendment was adopted to extend citizenship rights to slaves after the civil war and the erroneous Dred Scott decision (a Supreme Court decision where the court held the Constitution did not allow Congress and the states to extend citizenship to decedents of slaves). The purpose of this clause was “to prevent ‘the reemergence of a hereditary caste of subordinated citizens.’”[2] While the Fourteenth Amendment’s Citizenship Clause has been around for many years, it has been attacked in recent decades with some attributing the hostility to “illegal” immigration.[3]

One of Donald Trump’s recent proposals includes using “an executive order to deny birthright citizenship to babies born in the U.S. to non-citizens and undocumented immigrants.”[4] An executive order is a directive directly issued by a president. While an executive order has the same power as federal law, Congress has the power to pass legislation that can override an executive order and that legislation would be subject to a presidential veto.[5]

Axios on HBO interviewed Trump and discussed his plans to remove the right to citizenship for those born in the United States to non-citizens and unauthorized immigrants. Trump claimed the United States is the only country in the world where a person can come in and have a baby, and have that baby receive full citizenship rights and benefits.[6] There are, however, at least thirty other counties that grant automatic birthright citizenship, including Canada and Mexico.[7] Regardless, Trump argues the availability of birthright citizenship in the United States is “a magnet for illegal immigration” and allows these individuals to acquire all of the benefits offered by the country.

Trump’s argument for revoking birthright citizenship is based on the “subject to the jurisdiction thereof” language in the Fourteenth Amendment.[8] Traditionally, this phrase was read to only exclude U.S. born children of foreign diplomats or enemy forces engaged in conflict in the United States.[9] Those who argue that Trump’s position holds validity, rest their argument solely within these words. Most legal and constitutional scholars argue that a change of this magnitude would require a constitutional amendment. However, there are a small number of legal scholars who argue the entire country has been incorrectly reading and interpreting the Fourteenth Amendment for over 100 years. These individuals believe children born in the United States, to non-citizens, should not be given rights to citizenship. This minority of legal scholars argue previous case law incorrectly interpreted the language of the Fourteenth Amendment, thus causing an abuse of our current system.[10] Vice President Mike Pence, in a recent interview with Politico, stated the “subject to the jurisdiction thereof” language has never been ruled on by the Supreme Court on whether it applies to individuals who are in the United States illegally, thus implying this proposal has plausibility.[11]

While the Fourteenth Amendment’s main purpose was to extend citizenship rights to slaves and overrule the Dred Scott decision, two later Supreme Court cases also interpreted the Amendment’s language. In United States v. Wong Kim Ark (1898), the Supreme Court ruled a child born to Chinese parents in San Francisco was entitled to citizenship rights even though the child’s parents would never be citizens because of the Chinese Exclusion Act. The court in its ruling stated:

“To hold that the 14th Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”[12]

In Plyer v. Doe (1982), the court addressed unauthorized immigrants and free public education. While the court did not agree on the issue of public education, all nine justices found the “Equal Protection Clause protects legal and illegal aliens alike…because illegal aliens are ‘subject to the jurisdiction’ of the U.S., no less than legal aliens and U.S. citizens.”[13]

Some argue the Fourteenth Amendment and the question of birthright citizenship is well settled law, while others argue children who are in the United States as a result of an illegal act have no claim to citizenship.[14] There are three important legal underpinnings of the validity of birthright citizenship. First, the Fourteenth Amendment expressly grants citizenship to those born (or naturalized) in the United States. Second, in two Supreme Court cases (United States v. Wong Kim Ark and Plyler v. Doe) the Court has already addressed birthright citizenship, the Equal Protection Clause, and illegal aliens, make these issues well settled law. Finally, there is a Federal statute that reiterates the language found in the Fourteenth Amendment. Subsection (a) of 8 U.S.C. § 1401 states anyone born in the United States, and who is subject to its jurisdiction “shall be nationals and citizens of the Untied States.”[15] This statute was effective as of June 27, 1952, illustrating it was an issue important enough to be revisited years after the Fourteenth Amendment had been ratified.[16]

While it may be possible for birthright citizenship to be impacted by an executive order, the executive order may not have the desired outcome right away, or at all. The order would be going up against a constitutional amendment, two Supreme Court cases, and a Federal statute. Even if Trump did attempt to end birthright citizenship through an executive order, all he would be doing is “offering his interpretation” and preparing the issue for legal proceedings. The Supreme Court would eventually be tasked with deciding what the correct interpretation of the “subject to the jurisdiction thereof” language is. A president will not be able to end birthright citizenship with an executive order but rather will be able to argue what its administration prefers the interpretation of the language to be.[17] At the end of the day, it would be up to the United States Supreme Court to rule on the issue and decide how to proceed, and most importantly to determine if Trump’s preferred interpretation is correct.[18]

  1. Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997). ↑
  2. Allison S. Hartry, Birthright Justice: The Attack on Birthright Citizenship and Immigrant Women of Color, 36 N.Y.U. Rev. L. & Soc. Change 57, 64-65 (2012). ↑
  3. Eisgruber, supra at 55. ↑
  4. Ted Hesson, Can Trump revoke birthright citizenship? Nearly all on left and right say no., Politico (Oct. 10, 2018), (https://www.politico.com/story/2018/10/30/trump-birthright-citizenship-plan-900891. ↑
  5. Executive Orders 101: What are they and how to Presidents use them?, Constitutional Center (Jan. 23, 2017), https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them/. ↑
  6. Jonathan Swan, Stef W. Knight, Exclusive: Trim targeting birthright citizenship with executive order, AXIOS (Oct. 30, 2018), https://www.axios.com/trump-birthright-citizenship-executive-order-0cf4285a-16c6-48f2-a933-bd71fd72ea82.html. ↑
  7. Julie Hirschenfeld Davis, President Wants to use Executive Order to End Birthright Citizenship, New York Times (Oct. 30, 2018), https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html. ↑
  8. Trump Claims He Will End Birthright Citizenship Through Executive Order, NPR (Oct. 30, 2018), https://www.npr.org/2018/10/30/662253537/trump-claims-he-will-end-birthright-citizenship-through-executive-order. ↑
  9. Louis Jacobson, Can Donald Trump end birthright citizenship with an executive order? Probably not, Politifact (Oct. 30, 2018), https://www.politifact.com/truth-o-meter/article/2018/oct/30/can-donald-trump-end-birthright-citizenship-execut/. ↑
  10. Trump Claims He Will End Birthright Citizenship Through Executive Order, supra. ↑
  11. Davis, supra. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Jacobson, supra. ↑
  16. Id. ↑
  17. Jacobson, supra. ↑
  18. Grace Dobush, Trump Says He Plans to End Birthright Citizenship. But Can He Do That?, Fortune (Oct. 30, 2018), http://fortune.com/2018/10/30/trump-end-birthright-citizenship-executive-order/. ↑

You may also like