Among President-elect Donald Trump’s plans for immigration is a move to end a longstanding practice of granting something known as “birthright citizenship” to children whose parents are illegally present in the United States.
How exactly Trump will change policies within agencies is unclear, but experts indicate he has options.
Regardless, revoking birthright citizenship could impact waves of new illegal immigrants and change the incentives for so-called birth tourism, wherein an expectant mother arrives in the United States just before giving birth.
The concept of birthright citizenship stems from the 14th Amendment, which states in part: “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.”
Lora Ries, who serves as director of the Border Security and Immigration Center at the Heritage Foundation, told The Epoch Times that Trump could start by directing the State Department and Department of Homeland Security (DHS) to interpret the 14th Amendment in a particular way.
“I don’t believe that a statute is necessary” or that a “constitutional amendment is necessary,” said Ries, who also served as the deputy chief of staff for DHS during Trump’s first administration.
Sen. Lindsey Graham (R-S.C.) has introduced legislation that would end birthright citizenship for children of illegal immigrants.
Immigration Reform Law Institute director of litigation Chris Hajec indicated, however, that a Supreme Court decision will be necessary to effect long-term change.
“A law from Congress wouldn’t be enough,” he told The Epoch Times, noting that Trump’s executive policies and any act of Congress would likely end in the courts.
While Hajec expects a Supreme Court decision on the issue, he doubts the court would somehow retroactively revoke birthright citizenship for individuals who already have it.
“I think the court would just say whether this prospective, forward-looking regulation of the Trump administration was lawful,” he said.
The court could allow Trump’s birthright citizenship policy by dismissing a challenge that arises from a lower court’s approval of it.
Supreme Court Precedent
In United States v. Wong Kim Ark, a majority of the court held that the 14th Amendment granted birthright citizenship to a Chinese man whose parents were legally present in the United States.Some have questioned whether the reasoning in that decision applies to children of the illegal immigrants who have crossed the southern border.
“The court only held that a child born of lawful, permanent residents was a U.S. citizen,” former Federal Election Commission member Hans von Spakovsky said in 2018.
“That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.”
Many other groups disagreed, including the American Civil Liberties Union (ACLU), which has vowed to combat Trump’s agenda.
The finer points of interpreting that decision could be determined by whoever sits on the Supreme Court when Trump’s policy lands there.
One of those is Judge James Ho, a former Thomas clerk who serves on the U.S. Court of Appeals for the Fifth Circuit.
“When we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the United States,” he wrote.
‘War or Invasion’
Trump could receive sympathy from a judge such as Ho and prompt more complicated legal arguments if he decides to tailor his policy to a particular situation.Ho told South Texas College of Law Professor Josh Blackman that “birthright citizenship obviously doesn’t apply in case of war or invasion.”
Trump has described the situation at the southern border as an “invasion” and suggested via his Truth Social platform that he would use military assets to address it.
In doing so, he compared Texas to presidents defending the United States as a whole and indicated that courts couldn’t review whether presidents had improperly designated something an invasion under Article IV of the Constitution.
Section 4 of Article IV states that: “The United States shall guarantee to every state in this union a Republican form of government, and shall protect each of them against invasion.”
In July, George Mason University law professor Ilya Somin criticized Ho’s interpretation.
He acknowledged that while “actions by non-governmental groups can qualify as ‘invasion’... it does not follow that illegal migration, drug smuggling, or other ordinary criminal activity qualify.”
Perhaps previewing future legal battles, Ho’s concurrence compared the situation at the southern border to the threat of terrorism after the attacks of Sept. 11, 2001.
In his interview with Blackman, Ho compared the issue to the debate over unlawful combatants after 9/11, noting that birthright citizenship didn’t apply to those combatants.
A similar issue arose during Trump’s first term when he attempted to prevent terrorism by barring entry from certain nations that were known terror hotspots.
The ACLU argued, among other things, that his so-called “travel ban” targeted Muslims and therefore violated the First Amendment.
It’s unclear how the current court would rule on Trump using national security as a basis for attempting to exclude certain individuals from birthright citizenship.
