How birthright citizenship could change under Trump

Everyone born in the United States, with limited exception, is a U.S. citizen. The Constitution says so.

That’s the legal reading, over a century old, that Donald Trump says he seeks to scrap on Day 1. The president-elect has pledged to end birthright citizenship for children of unauthorized immigrant parents, so that those children born in the country aren’t automatically American.

He confirmed the plan in an NBC interview that aired Sunday.

“We have to end it,” said Mr. Trump. He added that he hoped to do so through “executive action.”

His transition team is starting to draft versions of an executive order, reports The Wall Street Journal. An ensuing legal fight could end up before the Supreme Court. The Constitution outlines how it can be amended – and involves approval from both Congress and the states.

The birthright debate isn’t new. It’s part of a long-term national grappling over the promise and limits of immigration, and what some analysts see as legal questions left unsettled.

How is automatic citizenship a right?

In the U.S. Constitution, Section 1 of the Fourteenth Amendment leads with this line:

“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 country’s concept of citizenship transformed through the Civil War era. In 1857, the U.S. Supreme Court ruled that enslaved people weren’t U.S. citizens. The Civil Rights Act of 1866 reversed that decision, establishing U.S. citizenship for people born here regardless of race or past enslavement.

The act was a stepping stone to the Fourteenth Amendment, which granted citizenship to formerly enslaved people when it was ratified in 1868. Three decades later, the Supreme Court affirmed birthright citizenship in the case United States v. Wong Kim Ark.

Born in San Francisco to Chinese parents, Wong Kim Ark was denied entry back into the U.S. after a trip to China on the grounds he wasn’t a U.S. citizen. In a 6-2 decision, the justices confirmed that he was.

The Wong Kim Ark ruling has governed the prevailing understanding of automatic citizenship. But some legal minds argue the citizenship clause remains unsettled – especially for children of unauthorized immigrants. That question wasn’t addressed in the Wong Kim Ark case, they argue.

During the NBC interview, Mr. Trump repeated the false claim that only the U.S. has birthright citizenship. Several countries do, including Canada and Mexico.

Why does President-elect Trump want to restrict automatic citizenship?

Mr. Trump casts it as part of cracking down on illegal immigration that swelled under the Biden administration. This includes removing what Mr. Trump calls an “incentive.”

He spoke of ending automatic citizenship leading up to and during his first term, but he never signed an order. During his latest campaign, he released a video vowing to tackle the task anew as part of securing the border.

On Day 1, “I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship,” he said. “At least one parent will have to be a citizen or a legal resident in order to qualify.”

The New York Times reported last month that Mr. Trump’s team plans to stop issuing documents like passports and Social Security cards to babies born to unauthorized migrant parents on U.S. soil.

The president-elect has also said he wants to rein in “birth tourism,” in which women come from abroad to birth their babies here. Those schemes exist, and fraudulent operations by Chinese nationals have been prosecuted by the U.S. government. Some Trump critics, however, have called his treatment of “birth tourism” xenophobic.

In 2016, the latest year available, around 250,000 babies were born to unauthorized immigrant parents in the U.S., reports Pew Research Center.

Can Mr. Trump actually change birthright citizenship?

It’s unclear. Any executive order would likely draw a legal fight, and could end up in the nation’s top court. One point of debate, which some legal experts say could prove key, is how to interpret who is “subject to the jurisdiction” of the U.S. – as the law says.

Changing the citizenship clause in the Constitution, however, would require an amendment. That would involve an approval by two-thirds vote from the U.S. House and Senate, and ultimately a ratification by at least 38 states. The last amendment was added in 1992.

Birthright citizenship is among the “hallmark pieces of the American experiment,” says Jennie Murray, president of the National Immigration Forum. Restricting this right “begins to unwind the definition of what it means to be American,” she says, which could be seen as a step too far for some Trump supporters.

Former immigration judge Andrew Arthur underscores that entering the U.S. without authorization is a crime. The citizenship benefit “creates a pull factor,” he says. “And generally, we try to eliminate those incentives from our law.”

Automatic citizenship is a “question that needs to be resolved in the Constitution,” says Mr. Arthur, law and policy fellow at the Center for Immigration Studies. He notes there’s already an exception to whom the Fourteenth Amendment citizenship clause applies: children of foreign diplomats.

Hiroshi Motomura, co-director of the Center for Immigration Law and Policy at UCLA School of Law, thinks it’s unlikely the Supreme Court would overturn Wong Kim Ark. That’s because while possible, he says, that would reverse more than a century of precedent.