WASHINGTON — President-elect Donald Trump has promised that put an end to birthright once he comes to power, he will fulfill his campaign promises restrict immigration and redefine what it means to be American.
But any attempt to halt the policy would face steep legal hurdles.
Birthright citizenship means that anyone born in the United States automatically becomes a U.S. citizen. The law has been around for decades and applies to children born to someone who is in the country illegally, or in the U.S. on a tourist or student visa, and who plans to return to their home country.
It is not the practice of every country, and Trump and his supporters have argued that the system is being abused and that there should be stricter standards for becoming a U.S. citizen.
But others say this is a right enshrined in the 14th Amendment to the Constitution. It would be extremely difficult to undo this right, and even if it were possible, it would be a bad idea.
Here’s a look at birthright citizenship, what Trump has said about it and the prospects for ending it:
During an interview on Sunday NBC’s “Meet the Press” Trump said he “absolutely” plans to end birthright citizenship once he is in office.
“We’re going to put an end to it because it’s ridiculous,” he said.
Trump and other birthright opponents have argued that it encourages people to come to or participate in the U.S. illegally ‘birth tourism’, in which pregnant women come to the US specifically to give birth so that their children can obtain citizenship before returning to their home countries.
“Simply crossing the border and having a child should not give anyone the right to citizenship,” said Eric Ruark, research director for NumbersUSA, which advocates reducing immigration. The organization supports changes that would require at least one parent to be a permanent legal resident or U.S. citizen before their children would automatically receive citizenship.
Others have argued that ending Birthright would cause profound harm to the country.
“One of our great advantages is that the people born here are citizens and not an illegal underclass. There is better assimilation and integration of immigrants and their children because of birthright rights,” said Alex Nowrasteh, vice president for economic and social policy studies at the pro-immigration Cato Institute.
In 2019, the Migration Policy Institute estimated that 5.5 million children under the age of 18 were living illegally with at least one parent in the country in 2019, representing 7% of the U.S. child population. The vast majority of these children were U.S. citizens.
The nonpartisan think tank said during Trump’s 2015 campaign for president that the number of people living illegally in the country would “balloon” if birthright rights were revoked, creating “a self-perpetuating class that will benefit from generations of social membership would be excluded’.
In the aftermath of the Civil War, Congress ratified the 14th Amendment in July 1868. That amendment secured citizenship for everyone, including black people.
“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,” says the 14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
But the 14th Amendment did not always translate into everyone being granted birthright citizenship. For example, it wasn’t until 1924 that Congress finally granted citizenship to all U.S.-born Native Americans
A key case in the history of birthright law occurred in 1898, when the U.S. Supreme Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants, was a U.S. citizen because he was born in the United States. The federal government had tried to ban him from entering the province after traveling abroad, on the grounds that he was not a citizen under the Chinese Exclusion Act.
But some have argued that the 1898 case clearly applied to children born to parents who are both legal immigrants to America, but that it is less clear whether the case also applies to children born to parents without legal status or, e.g. , who come for a short period. such as a tourist visa.
“That is the most important thing in this area. In fact, this is the only case of this,” said Andrew Arthur, a fellow at the Center for Immigration Studies, which supports immigration restrictions. “It’s much more of an open legal question than most people think.”
Some advocates of immigration restrictions have argued that the words “subject to the jurisdiction thereof” in the 14th Amendment allow the U.S. to deny citizenship to babies born in the country illegally. Trump himself used that language in his 2023 announcement that he would seek to end birthrightism if re-elected.
Trump was unclear in his interview on Sunday how he wants to end birthright rights.
When asked how he could circumvent the 14th Amendment with an executive action, Trump said: “Well, we’re going to have to change it. Maybe we should go back to the people. But we have to put an end to it.” When pressed further on whether he would use an executive order, Trump said “if we can, through executive action.”
He gave much more detail in a 2023 post on his campaign website. In it, he said he would issue an executive order on the first day of his presidency making clear that federal agencies “require that at least one parent be a U.S. citizen or lawful permanent resident so that their future children automatically become U.S. citizens.” ”
Trump wrote that the executive order would make clear that children of people in the U.S. illegally “should not be issued passports or Social Security numbers, or eligible for certain taxpayer-funded welfare benefits.”
This would almost certainly lead to a lawsuit.
Nowrasteh of the Cato Institute said the law is clear that birthright rights cannot be terminated by executive order, but Trump may still be inclined to try through the courts.
“I don’t take his statements very seriously. He has been saying things like this for almost a decade,” Nowrasteh said. “When he was president before, he did nothing to advance this agenda. The law and the justices are almost unanimously opposed to his legal theory that the children of illegal immigrants born in the United States are not citizens.
Trump could push Congress to pass a law ending birthright citizenship, but would still face the legal challenge that it violates the Constitution.
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Associated Press reporter Elliot Spagat in San Diego contributed to this report.