Can Trump Really End Birthright Citizenship?

Of all of President Donald Trump’s plans to secure the U.S.-Mexico border and reform America’s broken immigration system, his push to end birthright citizenship has emerged as the most controversial – even to some on the right. But what are the facts behind the outrage when it comes to the historical and legal basis for birthright citizenship?

The idea that someone is an American citizen purely by virtue of his mother being physically present in the United States at the time of his birth has been widely accepted, both in the legal community and by the public more broadly, for well over 100 years. Defenders of birthright citizenship point to the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

On the surface, that indeed seems relatively clear-cut: anyone born in the United States is a citizen. But the authors of the 14th Amendment also included a qualifying clause – subject to the jurisdiction thereof – that creates nuance. What exactly does “jurisdiction” mean?

To answer this question, it is important to understand the historical context of the 14th Amendment. It was ratified in 1868 in the wake of the Civil War for the specific purpose of granting citizenship to freed slaves, overturning the Supreme Court’s 1857 Dred Scott v. Sanford decision.

At the time, the question of whether the 14th Amendment applied to children of illegal aliens was hardly top of mind for courts or lawmakers – with the American West largely unsettled and borders still fuzzy, the very concept of illegal immigration was relatively new.

Nonetheless, the generally accepted idea has been that “jurisdiction” simply means subject to American laws – a definition which would mean the children of illegal aliens are American citizens.

However, as Michael Anton noted in a 2018 op-ed for The Washington Post, “Sen. Jacob Howard of Michigan, a sponsor of the [jurisdiction] clause, further clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’”

In other words, there is at the very least serious doubt – if not outright affirmative evidence to the contrary – as to whether the authors of the 14th Amendment intended for it to grant birthright citizenship to the children of illegal aliens.

Birthright citizenship proponents counter that the Supreme Court has already decided this question in the 1898 case United States v. Wong Kim Ark. Ark, born in the United States, was the son of Chinese immigrants who never became American citizens but, importantly, were legal residents of the United States.

In 1895, Ark traveled to China. Upon his return to the United States, he was detained by immigration authorities, who claimed that he was not a U.S. citizen. In a 6-2 decision, the Court ruled in Ark’s favor, holding that the 14th Amendment indeed conferred U.S. citizenship on him by birthright.

But as Anton again notes, “the Court has ruled only that children of legal residents are citizens. That doesn’t change the status of children born to people living here illegally.”

Regardless, the question will likely end up in the Supreme Court again. A federal district judge has already blocked Trump’s executive order ending birthright citizenship, calling it “blatantly unconstitutional.” The Trump administration is sure to challenge that ruling.

Trump’s order affirms specifically that U.S. government agencies will no longer recognize the citizenship of anyone whose “mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth,” or whose “mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Importantly, Trump’s order also only applies to individuals born in the United States 30 days after the order takes effect.

The practicality of Trump’s order is obvious. Birthright citizenship is an enormous magnet for illegal immigration. So-called “birth tourism,” where expectant mothers travel to the United States for the express purpose of giving birth here, has also become a major problem. But regardless of its effectiveness at combatting illegal immigration, whether the order can hold up in court is a different question entirely.

From here one can only speculate how the Supreme Court will rule. Businessman and lawyer Bill King pointed out in an explainer for RealClearPolitics that “the Supreme Court would not have to overtly overrule Ark to uphold Congress’ authority to redefine the limits of birthright citizenship.”

However, he continues “even if recognizing that Congress has the authority to define the ‘subject to the jurisdiction’ clause required overruling Ark, the current Court has shown little reluctance to overturn long-standing precedent.” Freedom Center Fellow Davor Horowitz has also noted that the personal ideological persuasions of the justices could come into play, writing somewhat wryly, “If you think Neil [Gorsuch] or Amy [Coney Barrett] are going to vote to eliminate birthright citizenship, well, good luck with that.”

Yet, the current makeup of the Court has on occasion shown a willingness to supersede precedents in favor of a more originalist interpretation of the Constitution. In 2022, the 6-3 majority handed down Dobbs v. Jackson repealing Roe v. Wade, to the shock of many. It also struck down Chevron Deference last year.

In light of these decisions, it may well be that the Court is ready to revisit the supposedly “constitutional” right of birthright citizenship as well.

Andrew Shirley is a veteran speechwriter and AMAC Newsline columnist. His commentary can be found on X at @AA_Shirley.