Trump Tried To Rewrite Part Of The Constitution On Day 1. Here’s What You Need To Know.
President Donald Trump signed a bevy of executive orders within hours of taking the oath of office on Monday — including one that attempts to end birthright citizenship, which has long been guaranteed under the Constitution.
Less than 24 hours after Trump signed the executive order, his administration was hit with a lawsuit from a coalition of attorneys general who say the order is “blatantly unconstitutional and quite frankly, un-American.” There will almost certainly be a drawn-out legal battle over who can be considered a U.S. citizen.
Read on to understand what birthright citizenship is, what Trump’s order proposes, and what constitutional experts have to say about the whole thing.
What Is Birthright Citizenship?
The Constitution’s 14th 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The language is “unequivocal” that “all means all,” according to the nonprofit think tank Constitutional Accountability Center. Anyone born in the United States — even if one or both of their parents were born outside the country — is guaranteed U.S. citizenship.
This practice has been in place for a long time. The Citizenship Clause was added to the 14th Amendment in 1868, and the notion of birthright citizenship is supported by the Immigration and National Act of 1952.
What Does Trump’s Executive Order Say?
The executive order declares that any child born in the U.S. to undocumented immigrants 30 days from Jan. 20, 2025, will not be treated as an American citizen.
“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States,” the order says, before laying out which children would be affected.
According to the order, this would include children of women who are in the U.S. “unlawfully.” The order says it also applies to children whose mothers are in the U.S. on a temporary but legal basis, such as a visa, and whose fathers were “not a United States citizen or lawful permanent resident” when the child was born.
The executive order’s language hinges on phrasing in the 14th Amendment: “subject to the jurisdiction thereof.”
By the Trump administration’s logic, children of undocumented immigrants are not citizens “subject to the jurisdiction” of American laws and cannot be protected by the 14th Amendment.
So, What Do The Experts (And Laws) Say?
The Trump administration’s interpretation of the “jurisdiction” line is off, according to more than a century of case law, constitutional experts and existing government policy.
CAC’s experts say that “subject to the jurisdiction of” is simply meant to exempt birthright guarantees to the children of foreign diplomats who have diplomatic immunity, because diplomats with immunity are not subject to U.S. jurisdiction.
The U.S. Citizenship and Immigration Services manual, which holds the nation’s guidance on rules and immigration policies, states: “Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not ’born … subject to the jurisdiction of the United States.′ [Department of Homeland Security] regulations, however, have long allowed these children to choose to be considered lawful permanent residents (LPRs) from the time of birth.” It remains to be seen how the new order would reinterpret this guidance.
The Supreme Court hasn’t yet weighed in on the “jurisdiction” question that Trump’s executive order has now raised.
The high court did, however, rule in a 1898 decision, United States v. Wong Kim Ark, that a child born to Chinese immigrants was, in fact, a U.S. citizen. Ark was a citizen simply because he was born on U.S. soil. That was the promise of the 14th Amendment, Justice Horace Gray outlined in the court’s majority opinion.
“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States,” Gray wrote nearly 130 years ago.
The only legally airtight way to eliminate birthright citizenship would be through a constitutional amendment, which would require congressional approval from both two-thirds of the House and Senate. That would be no small feat: The Constitution has only been amended 27 times in its history, and no changes have been made since 1992.