Donald Trump is bringing back an abandoned idea from his first term: ending birthright citizenship. Republicans in Congress aren’t sure he can do it.
“Birthright citizenship is absurd the way we’ve applied it,” Sen. Ron Johnson said. “I don’t think many people think that can be ended by executive action, though, unfortunately.”
Trump said he plans to end birthright citizenship on day one, in an interview with NBC News. But he himself alluded to some legal challenges. He said he’d end it through executive action “if we can” but also that it might “have to go back to the people.”
He floated the idea initially during his first term, but it didn’t go anywhere. Some Republicans at the time were critical of the idea, including former Speaker Paul Ryan. Now, many of the Republicans NOTUS spoke to were open to it, even if they acknowledged that the legal ground is murky.
“I support ending it by whatever means can be effective,” Sen. Ted Cruz said, though on whether Congress would have to change the 14th Amendment, said, “That’s actually a disputed legal question, and there are serious scholarly arguments on both sides.”
Sen. Eric Schmitt said he’d have to look at the language of any executive action on the matter. “I think we ought to take a look at everything right now,” Schmitt said. “It’s just fundamentally been abused. The American people have had enough of it, and so we’ll see.”
The last real challenge to birthright citizenship came in 1890. The 14th Amendment says, “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 Supreme Court has since supported the idea that any person born in the U.S. is considered a citizen.
Conservatives who want to challenge the amendment focus on the phrase “jurisdiction thereof,” arguing that it creates some wiggle room around who is under the jurisdiction of the U.S. government.
Though that’s a wobbly argument, Adam Winkler, a professor at UCLA and an expert in constitutional law, said.
“There is no doubt that the child of an undocumented immigrant born in the United States is a citizen. It’s clear that they are subject to the jurisdiction of the United States, that is to say that they are subject to the governmental power of the United States,” Winkler said. “Their argument depends on a definition of ‘jurisdiction’ that has no basis in American law.”
Trump didn’t provide any more specifics on how he intends to implement the idea, but previous reporting indicates the administration could change the requirements for applying for documents like passports, which would effectively bar people from being able to prove their citizenship. That would quickly meet legal challenges.
“Any attempt by the president or by Congress to limit birthright citizenship is unconstitutional,” Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project, said. “Any such action would be met by litigation in court, and hopefully it would be blocked.”
Josh Blackman, a professor at the South Texas College of Law Houston, told NOTUS that there are some new ideas the Trump team could try out, namely around the idea that the U.S. is being “invaded.”
“There’s a part of the Constitution called the invasion clause, which people don’t focus on, but it’s become very relevant,” he said. “Trump declares an invasion, which he will probably do on day one, and says, ‘Well, if you’re the child of an invading force, you’re not a citizen.’ In other words, you’re no different than a belligerent army that’s attacking us.”
Blackman didn’t necessarily think that argument would be successful but said he thinks it’s one the Trump administration is likely to try out. Some Republican-led states have also tried to use invasion rhetoric to justify taking immigration matters into their own hands, like Texas Gov. Greg Abbott.
“I think that the children of illegal aliens are citizens. I think that’s the best reading of the 14th Amendment,” Blackman said, but “the invasion argument, though, does throw in a wrinkle.”
Wofsy said that while conservatives might call migration an “invasion,” it falls short of any official definition that indicates another country has organized a takeover of U.S. soil.
“There’s not a lot of case law on it, but what case law there is is clear that just talking about what one views as too much immigration just doesn’t count as an invasion,” he said. “Invasion is about organized military incursion into U.S. territory, and that’s something that is simply not happening right now.”
If Trump’s executive actions fail, he could try to pressure Congress to take up the issue and amend the Constitution. That’s an effort that would surely fail, given slim majorities in the House and Senate.
However, few were willing to totally write off the possibility of Trump finding a way to change birthright citizenship.
“Some people may say that that’s not realistic because it is illegal, and it’s not legally within the norms, but I think what we know is that the Trump administration is more than willing to break the law, and they have appointed to the Supreme Court that will allow him to break the law,” Rep. Alexandria Ocasio-Cortez said. “Removing and stripping birthright citizenship, if he wants to do it, he has a pattern of behavior doing illegal things and saying, ‘Well, what are you going to do about it?’”
“Don’t bet your house on the future rulings of the Supreme Court,” Winkler said.
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.