With his 2024 White House campaign stating on Tuesday that he would attempt to repeal birthright citizenship by executive order on his first day in office, the former President Trump is once again calling for its removal.
On the 125th anniversary of the Supreme Court decision in United States v. Kim Wong Ark, which established the constitutional right to citizenship by birth, Trump unveiled his proposal.
The suggestion is a reiteration of a long-standing desire of supporters of immigration limitation and a policy that Trump experimented with while in office, drawing criticism from both immigration advocates and legal experts.
The majority of scholars concur that a president lacks the power to revoke birthright citizenship through an executive order, mainly because the Constitution protects the practice.
According to the 14th Amendment, citizenship is granted to people who are “born or naturalized in the United States, and subject to the jurisdiction thereof.”
Since a Supreme Court case involving a U.S. citizen with Chinese parents in 1898, the interpretation of that amendment that it applies to children born in the country regardless of the parents’ immigration status has been largely accepted.
Immigration restrictionists contend that because the 14th amendment was enacted after the Civil War to protect equal rights for former slaves, it does not extend to the offspring of other groups, such as undocumented immigrants.
“As members of the Reconstruction Congress explained in 1866, the narrow exception to birthright citizenship applied only to the children of diplomats and those born into Native American tribes, who were under the ‘jurisdiction’ of a separate sovereign and did not need to comply with all U.S. laws,” wrote Amanda Frost, a professor of law at the University of Virginia and author of “You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.”
“In contrast, immigrants and their children living in the United States were and are required to follow all federal and state laws or face criminal and civil penalties and so are fully ‘subject’ to the nation’s ‘jurisdiction.’”
The executive order “will explain the clear meaning of the 14th Amendment,” which, according to the Trump campaign, is that children of foreign nationals born in the United States are not subject to the authority of the United States as stated in the Constitution.
A draft executive order to that effect was distributed while President Trump was in office, and the concept was reintroduced soon after Trump lost the 2020 presidential election to Vice President Biden.
