President-elect Donald Trump again says he is committed to ending birthright citizenship for children born to foreign nationals in the country illegally.
This includes those who commit visa and other fraud to enter the U.S. to give birth in order for their child to obtain U.S. citizenship. Under Trump’s first administration, those participating in a “birth tourism” scheme were prosecuted for violating federal law, The Center Square reported.
The term, “birthright citizenship,” stems from Section 1 of the 14th Amendment to the U.S. Constitution, which 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.”
Trump vowed to end birthright citizenship in his first presidency, which didn’t happen.
NBC host Kristen Welker claimed the 14th amendment “states all persons in the United States are citizens” and asked if Trump could “get around the 14th Amendment with executive action?”
“Maybe we have to go back to the people,” Trump replied, referring to a constitutional amendment. “We have to end it.”
He had hoped to end birthright citizenship during his first presidency through executive action but instead prioritized responding to the coronavirus, he said.
In a campaign video, he explained his plan, saying, “the U.S. is among the only country in the world that says that even if neither parent is a citizen nor even lawfully in the country, their future children are automatic citizens the moment parents trespass onto our soil.”
He vowed to sign an executive order on his first day in office stating that “future children of illegal aliens will not receive future citizenship.” His order would end “birth tourism, where hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegally obtain U.S. citizenship for the child often to later exploit chain migration to jump the line to get green cards for themselves and their family members.”
Trump said the order will require at least one parent to be a legal resident or citizen to qualify for birthright citizenship. If such an order were issued, it and others are expected to be challenged in court, the American Civil Liberties Union and others have warned.
U.S. Sen. Mike Lee, R-Utah, pointed out that Welker omitted a key phrase in the 14th amendment, that everyone born in the U.S. is “subject to the jurisdiction thereof,” explaining that “Congress has the power to define what it means to be born in the United States ‘and subject to the jurisdiction thereof.’”
“While current law contains no such restriction, Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.”
In 1993, former U.S. Sen. Harry Reid, D-NV, proposed the Immigration Stabilization Act to impose statutory limitations on automatic birthright citizenship. It “would have limited automatic birthright citizenship to children born in the United States to mothers who were either U.S. citizens or legal permanent residents at the time. The fact that federal law doesn’t currently impose such a restriction doesn’t mean that it couldn’t,” which is why Reid proposed it, Lee said.
“Nothing in the Fourteenth Amendment limits Congress’s ability to enact legislation limiting birthright citizenship along the lines of what … Reid proposed in 1993.”
Lee also said that “those who suggest Congress is somehow powerless to limit birthright citizenship ignore important constitutional text giving Congress power to define who among those ‘born in the United States’ is born ‘subject to the jurisdiction thereof.’”
The 14th Amendment, adopted in 1868, hasn’t always been applied equally. Native Americans born in the U.S. weren’t granted citizenship status until 1924.
The Supreme Court has only ruled on one federal case related to birthright citizenship, in 1898. The court held that a child born in San Francisco to legal Chinese immigrants was a U.S. citizen. The case didn’t address the issue of children born in the U.S. to illegal border crossers or birth tourism participants involved in visa fraud.
US Sen. Ted Cruz, R-Texas, has long argued for ending birthright citizenship by amending the Constitution, which is no simple endeavor.
The Constitution may be amended through a two-thirds majority vote in the U.S. House and U.S. Senate. The president has no constitutional role in this process. The amendment must be ratified by three-fourths of the states, 38 out of 50.
The Constitution may also be amended through a constitutional convention called by two-thirds of the state legislatures. This has never happened. All 27 amendments to the Constitution were passed by Congress and ratified by the states.
