What is birthright citizenship, and can Trump end the right in the U.S.?

Washington — President Trump is seeking to end birthright citizenship after years of criticizing the constitutional right, and now the issue is before the Supreme Court.

Mr. Trump issued an executive action on the first day of his second term to attempt to deny birthright citizenship to the U.S.-born children of undocumented immigrants. The U.S. government has long interpreted the U.S. Constitution to mean that those born on American soil are citizens at birth, regardless of their parents’ immigration status, meaning the executive action is likely to be challenged legally.

What is birthright citizenship, and is it in the U.S. Constitution?

Birthright citizenship automatically grants citizenship to anyone born on U.S. soil, regardless of the parents’ citizenship status.

The Citizenship Clause, under the 14th Amendment to the Constitution, 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.”

Congress passed the 14th Amendment in 1866, during the Reconstruction period following the Civil War. In 1868, the amendment was ratified to extend citizenship to people born on U.S. soil, invalidating the Supreme Court’s Dred Scott decision, which barred slaves and descendants of slaves from becoming citizens.

What case is before the Supreme Court on birthright citizenship?

The Supreme Court is hearing arguments on April 1 in Trump v. Barbara, in which the plaintiffs are arguing Mr. Trump’s executive order does not comport with the 14th Amendment’s Citizenship Clause and federal immigration law.

Lawyers for the plaintiffs are arguing that “subject to the jurisdiction” means subject to U.S. laws. They said the Citizenship Clause recognizes only a narrow set of exceptions for the children of diplomats and invading enemies, as well as babies born into Native American tribes.

In filings with the Supreme Court, Solicitor General D. John Sauer argued that the 14th Amendment was adopted to grant citizenship to freed slaves and their children, not to babies whose parents are undocumented or in the U.S. temporarily.

He said the interpretation that the Constitution guarantees citizenship by birth has been wrongly applied for more than a century, and the president is now seeking to correct that “misreading.”

As a result of that prevailing view of citizenship by birth, citizenship has been granted to “hundreds of thousands of people who do not qualify for it,” Sauer argued. That has “powerfully incentivized” illegal immigration into the U.S. and encouraged “birth tourism,” in which pregnant mothers come to the country to obtain U.S. citizenship for their babies, he argued.

Why does Trump want to end birthright citizenship?

Mr. Trump has been talking about ending birthright citizenship since his presidential campaign in 2015. In a policy paper at the time, he called birthright citizenship “the biggest magnet for illegal immigration.” In the 2023 video, he blamed birthright citizenship for “birth tourism,” in which he said migrants spend the final weeks of their pregnancies in hotels in order to give birth in the U.S. and then use the child’s citizenship status to bring relatives into the U.S. through “chain migration,” also known as family-based migration.

During his first term, Mr. Trump pledged to end birthright citizenship but did not do so. He told “Meet the Press” that he had planned to sign an executive action on birthright citizenship before his focus turned to fighting COVID-19.

President-elect Donald Trump — President Trump has long criticized birthright citizenship.

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Mr. Trump called the guarantee of citizenship by birth “ridiculous,” telling Welker that the U.S. is the only country with birthright citizenship. In fact, dozens of other countries have birthright citizenship.

“If somebody sets a foot — just a foot, one foot, you don’t need two — on our land, congratulations, you are now a citizen of the United States of America,” he complained. “We’re going to end that because it’s ridiculous.”

Opponents of birthright citizenship say it was never intended to cover undocumented immigrants’ children or so-called “birth tourism.” They contend the amendment was ratified to eliminate barriers to birthright citizenship based on race.

More broadly, the pledge is part of what Mr. Trump has billed as a radical shift on immigration that he campaigned on, part of a promise to target both unauthorized and legal immigrants using unprecedented measures likely to test the limits on his authority.

Could Trump repeal birthright citizenship through executive action?

“The answer is no,” said Michael LeRoy, professor at the University of Illinois at Urbana-Champaign School of Labor and Employment Relations and College of Law. That’s because the president lacks the authority to unilaterally change the Constitution.

Eliminating birthright citizenship through a constitutional amendment would be nearly impossible as well, because of the widespread approval needed not only from Congress but also from the states.

What’s enshrined in the Constitution can’t be altered by a regular congressional vote, either. Amendments not only have to be approved by a two-thirds vote in both chambers of Congress, but ratified by three-fourths of state legislatures, or three-fourths of conventions called in each state for ratification. It’s an extensive process with a high bar.

The only time in U.S. history a constitutional amendment has been repealed was when the 18th Amendment prohibiting the manufacture, sale and transportation of intoxication liquors, better known as prohibition, was repealed in 1933 through the addition of the 21st Amendment, LeRoy noted.

Do other countries besides the U.S. have birthright citizenship?

The U.S. is far from the only country with birthright citizenship, although birthright citizenship without conditions is more common in North and South America than it is in the rest of the world.

Unlike some countries, the U.S. does not require a parent to be a citizen for a child born on U.S. soil to become a citizen. It’s automatic.