Trump’s Plan to End Birthright Citizenship Faces Legal Hurdles

President-elect Donald Trump recently announced plans to end birthright citizenship on “day one” of his second term, a move that would significantly alter the current U.S. policy granting citizenship to anyone born on U.S. soil. However, legal experts widely believe such a policy change would face significant legal hurdles, as Trump does not have the unilateral power to alter constitutional provisions like birthright citizenship through executive action alone.

In an interview with NBC’s Meet the Press aired on Sunday, Trump reiterated his stance, stating, “Yeah, absolutely,” when asked if ending birthright citizenship remained part of his plan. He further expressed his intent to execute the change through executive action, provided it is feasible. This issue has become a defining aspect of Trump’s immigration platform, even as he has previously focused on ending birthright citizenship for the children of undocumented immigrants specifically.

The U.S. Constitution’s 14th Amendment currently mandates that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This clause has been interpreted to mean that nearly all individuals born on U.S. soil are automatically granted citizenship, with few exceptions—such as children of foreign diplomats or enemy combatants. However, Trump’s proposal to limit birthright citizenship would be challenged on constitutional grounds, as executive orders cannot override the 14th Amendment’s language.

To change the Constitution, Congress would have to pass an amendment with a two-thirds majority in both chambers, followed by ratification by three-quarters of the states. This makes Trump’s “day one” plan an ambitious and legally uncertain proposal. Legal experts suggest Trump may seek to push a theory championed by a minority of legal scholars, which argues that the 14th Amendment does not apply to children of undocumented immigrants because they are not considered “subject to the jurisdiction” of the U.S. This interpretation is highly contested, with many legal experts dismissing it as flawed.

Margaret Stock, a former U.S. Military Academy law professor, has called this argument “lunatic fringe,” while Rebecca Hamlin, a law professor at the University of Massachusetts Amherst, suggested that lawyers supporting this view were as rare as “unicorns.” Should Trump attempt to restrict birthright citizenship under this theory, it would almost certainly face swift legal challenges, likely culminating in a Supreme Court case. While the Court currently has a conservative majority, it remains uncertain whether it would rule in favor of Trump, with some acknowledging that the legal basis for such a change is tenuous.

Despite these legal obstacles, Trump is determined to move forward with his proposal, telling NBC, “We’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it.” In his May 2023 proposal, Trump suggested that only children born in the U.S. to at least one parent who is a citizen or legal U.S. resident would be granted citizenship. Under this plan, people born to undocumented parents in the U.S. would not automatically become citizens. Trump has indicated that this change could be retroactive, though he also suggested that deportations might occur even for those who were born citizens, proposing that entire families of undocumented immigrants could be deported together.

The potential impact of ending birthright citizenship is significant. Trump has framed the policy as a measure to combat “birth tourism,” where undocumented immigrants allegedly travel to the U.S. to give birth, thus securing citizenship for their children. He has argued that ending birthright citizenship would reduce illegal immigration. However, studies have shown that such a move could backfire, potentially increasing the number of undocumented immigrants in the U.S. A 2010 study by the Migration Policy Institute projected that limiting birthright citizenship would add millions of undocumented individuals to the population by 2050.

Furthermore, ending automatic citizenship would create new bureaucratic challenges for American families. All U.S. residents would need to prove their citizenship or legal status when having children, and birth certificates might no longer serve as automatic proof of citizenship. This could complicate the process for obtaining passports and accessing other government services.

Contrary to Trump’s claim that the U.S. is the only country with birthright citizenship, more than 30 nations, including Canada and Mexico, also grant automatic citizenship to those born on their soil. This fact contradicts Trump’s assertions and highlights the global context of birthright citizenship.

While Trump’s plan has garnered strong support from some segments of the conservative base, it has also faced opposition from within his own party. Former House Speaker Paul Ryan (R-Wisc.) has stated that the 14th Amendment is clear and cannot be overturned through executive action, advocating for adherence to the Constitution. Similarly, James Ho, a conservative judge on the 5th Circuit Court of Appeals, has argued that birthright citizenship applies to all children born in the U.S., regardless of their parents’ immigration status.

The idea of ending birthright citizenship is not new for Trump. During his 2016 presidential campaign, he proposed similar changes but took no action on the matter during his first term. Trump justified this delay by citing the need to address the COVID-19 pandemic first. Nevertheless, this proposal remains a central element of his immigration platform for a potential second term, along with plans for mass deportations and restrictions on family-based immigration.

Despite his hardline stance on most immigration issues, Trump has expressed support for protections for individuals covered under the Deferred Action for Childhood Arrivals (DACA) program, known as “Dreamers.” He indicated a willingness to work with Democrats to find a solution for this group, offering a stark contrast to his more extreme immigration measures.

The future of birthright citizenship remains uncertain, and Trump’s legal strategy to end it will undoubtedly be a major point of contention in the years ahead. While his “day one” proposal reflects his ongoing commitment to reshaping immigration policy, it also sets the stage for what could be a prolonged and contentious legal battle.