As Donald Trump sets his sights on a second presidential term, his long-standing promise to eliminate birthright citizenship in the United States is gaining renewed attention. Legal experts, however, suggest that while the idea may be more plausible in a second term, it faces significant legal, procedural, and political hurdles that could make it difficult to achieve.
The U.S. Constitution currently guarantees citizenship to anyone born on American soil, even if their parents are undocumented immigrants. This principle, enshrined in the 14th Amendment since 1868, has been a cornerstone of American citizenship law. Yet, during his first term, Trump repeatedly stated his intention to end this right, suggesting that he might use executive action to achieve his goal. However, despite these claims, he did not follow through with any such action.
In recent comments, Trump reiterated his goal to end birthright citizenship, asserting that he could use executive power to do so, or potentially “go back to the people” to seek support. Legal experts, including Amanda Frost, a University of Virginia law professor, warn that attempting to eliminate birthright citizenship through executive action would likely be struck down by the courts. The 14th Amendment’s language is clear, Frost points out, stating that all individuals born in the United States, subject to its jurisdiction, are citizens.
However, with a conservative majority on the U.S. Supreme Court, the possibility of legal challenges succeeding is less certain. The fact that some potential nominees for the Court have argued that the 14th Amendment does not apply to the children of undocumented immigrants further fuels speculation that the issue could be revisited in a different political climate.
Andrew Rudalevige, a professor at Bowdoin College, emphasized that while the language of the 14th Amendment is clear, constitutional interpretation is ultimately in the hands of the Supreme Court. Should Trump push forward with his plan, he might face significant legal battles, but as Rudalevige points out, even the pursuit of such a change might generate political value for the former president.
Some of Trump’s supporters, including Utah Senator Mike Lee, argue that the term “jurisdiction” in the 14th Amendment could be reinterpreted to exclude the children of undocumented immigrants. However, other legal scholars, such as UCLA’s Adam Winkler, dismiss this argument, stating that the U.S. government exercises full jurisdiction over undocumented immigrants, thus making their children eligible for citizenship.
For Trump, the challenge of ending birthright citizenship lies not only in the legal complexities but also in the highly difficult process of amending the Constitution. Constitutional amendments require a supermajority in both chambers of Congress or a constitutional convention called by two-thirds of state legislatures. This high bar makes the prospect of eliminating birthright citizenship via an amendment highly unlikely.
Trump’s statements on the matter suggest that even if he cannot secure the necessary legal or constitutional changes, he may see political value in pushing the issue. Rudalevige suggests that, for Trump, the battle itself could serve to energize his base, even if the legal and practical obstacles prove insurmountable.
If birthright citizenship were to be successfully eliminated, experts warn that the change would have significant negative consequences for American society. The 14th Amendment, they argue, was designed to prevent the creation of a permanent underclass in the U.S., ensuring that all children born in the country are entitled to the full rights of citizenship.
The debate over birthright citizenship remains an important issue in the ongoing discussion of immigration reform, and Trump’s second term could bring this contentious issue to the forefront once again. For now, it seems that while the president-elect’s plan is far from a certainty, it is a policy that will continue to shape legal and political discourse in the years to come.
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