By Tom Hals
(Reuters) – Donald Trump has said he plans to end birthright citizenship as part of his promised crackdown on immigration when he becomes president on Jan. 20.
Below is a look at U.S. birthright citizenship and Trump’s legal authority to restrict it.
WHAT IS BIRTHRIGHT CITIZENSHIP?
Anyone born in the United States is considered a citizen at birth, which derives from the Citizenship Clause of the 14th Amendment, which was added to the Constitution in 1868. The amendment 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 Immigration and Nationality Act of 1952 also defines citizens and includes similar language.
There were an estimated 11 million immigrants in the U.S. illegally in January 2022, according to a U.S. Department of Homeland Security estimate, a figure that some analysts now place at 13 million to 14 million. Their U.S.-born children are considered by the government to have U.S. citizenship. Trump has complained about foreign women visiting the United States for the purpose of giving birth and conferring U.S. citizenship on their offspring.
ARE THERE EXCEPTIONS?
Yes. People born in the United States to a foreign diplomatic officer with diplomatic immunity are not U.S. citizens because they are not subject to the jurisdiction of the United States.
WHAT HAS THE SUPREME COURT SAID?
The Supreme Court has not addressed whether the Citizenship Clause applies to U.S.-born children of people who are in the United States illegally.
The main birthright citizenship case is from 1898, when the Supreme Court ruled that the son of lawful immigrants from China was a U.S. citizen by virtue of his birth in 1873 in San Francisco. The man, Wong Kim Ark, had been denied re-entry to the United States after a visit to China at a time when immigration from China was severely restricted.
The Supreme Court also ruled in 1884 in a dispute over voter registration that U.S.-born John Elk was not a citizen because he was born as a member of a Native American tribe and therefore not subject to U.S. jurisdiction. Congress extended U.S. citizenship to Native Americans in 1924.
WHAT IS THE VIEW OF OPPONENTS OF BIRTHRIGHT CITIZENSHIP?
Some scholars argue that if lawmakers wanted all people born in the country to be citizens, they would not have added the clause to the 14th Amendment specifying that citizens “be subject to the jurisdiction” of the United States.
They argue that this language excludes people who entered the country illegally and by implications, their U.S.-born children. Republican senators Lindsey Graham from South Carolina and Tom Cotton from Arkansas proposed bills this year that defined U.S.-born children as not “subject to the jurisdiction” of the U.S. if their parents were in the country illegally.
Most scholars are dismissive of that interpretation of the jurisdiction language. Unlike diplomats, people in the country illegally do not have legal immunity and are subject to the U.S. laws.
CAN TRUMP END BIRTHRIGHT CITIZENSHIP WITH AN EXECUTIVE ORDER?
The Constitution gives Congress the power to regulate citizenship, and no president has ever tried to redefine the rules of citizenship using executive orders, though Trump promised to do so in his first term.
Trump could issue an executive order to redefine birthright citizenship. Legal experts said he might declare that it requires one parent must be a U.S. citizen, a permanent resident or a member of the military — language that appeared in the Graham bill. He could direct his agencies to withhold passports or other documents and benefits unless the person meets the new requirement.
Anyone denied a document or benefit could challenge it and legal experts said the executive order would almost certainly be blocked immediately in the courts. But it would also put the issue on a path toward the Supreme Court and likely force the justices to determine who is entitled to birthright citizenship.
If courts decided the Constitution protected birthright citizenship, then only an amendment could change that. A Constitutional amendment would require two-thirds of both houses and approval by three-quarters of state legislatures, a process that would likely take years. The Constitution has not been amended since 1992.
(Reporting by Tom Hals in Wilmington, Delaware, Editing by William Maclean)
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