Birthright Citizenship is Still Protected by the U.S. Constitution

President-elect Donald Trump again has vowed to revoke birthright citizenship through an executive order. The proposed executive order would specifically target birthright citizenship for children born in the United States to parents who are illegally present in the U.S. or children born as a result of “birth tourism” to parents who have entered on a B-2 visitor visa for the purpose of having a child born in the U.S. However, this is likely political posturing, because legal experts nearly all agree that the President has no ability to independently alter this legal right provided by the U.S. Constitution.

What is Birthright Citizenship?

By its most basic definition, birthright citizenship states 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.

President-elect Trump and others in his incoming Administration contend 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, this right could be altered only through an amendment to the Constitution, barring a radical reinterpretation by the U.S. Supreme Court. Only Congress and the state legislatures – not the President – have the ability to amend the U.S. Constitution.

Conclusion

President-elect Trump’s remarks likely were made in hopes of energizing his base. Even if he does move forward with such an executive order, it is likely to be immediately struck down by the courts.

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