Birthright Citizenship Protected by the U.S. Constitution12 Nov 2018
President Donald Trump recently announced that he intends to revoke birthright citizenship through an executive order. However, this appears to be little more than political posturing, as legal experts nearly all agree that the President has no ability to alter this legal right provided by the U.S. Constitution.
What is Birthright Citizenship?
In the most basic definition, birthright citizenship means that a person born in the United States, with very limited exceptions, automatically becomes a U.S. citizen at birth. This principle is derived from Section One of the Fourteenth Amendment to the Constitution, which 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.
The Trump Administration contends that “subject to the jurisdiction thereof” implies that birthright citizenship does not automatically apply if the person’s mother is in the U.S. without legal status at the time of the child’s birth. The overwhelming majority of legal scholars, however, view this as a fringe theory. The general understanding of this phrase is that it simply excludes those who are truly not subject to U.S. jurisdiction, such as the children of diplomats.
Executive Order Cannot Alter Constitutional Protections
Given that birthright citizenship is a legal right enshrined in the U.S. Constitution, and barring a radical reinterpretation by the U.S. Supreme Court, this right could be altered only through an amendment to the Constitution. Only Congress and the state legislatures – not the President – have the ability to amend the U.S. Constitution.
President Trump’s remarks were made shortly before the midterm elections, so this likely was simply a means of energizing his base. Even if he does move forward with such an executive order, it almost certainly would be struck down by the courts.
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