Donald Trump’s team is crafting an executive order to end birthright citizenship for the children of undocumented immigrants, a monumental move that the president-elect’s allies say is a key step in his long-term strategy: taking the issue before the Supreme Court.
The effect of Trump’s order would be to exclude the children of undocumented immigrants and short-term visitors to the United States from the right to birthright citizenship established by the 14th Amendment. And while there are few details about what exactly he would do and how broad the action would be, immigration restrictionists say Trump could do several things, including ordering the State Department to refuse to issue passports to children without proof of their immigration status. parents or having Social Security numbers retained by the Social Security Administration.
It could also order agencies that provide welfare and public benefits to American citizens to deny these benefits to those who claim birthright citizenship, whose parents are in the country illegally. The details of the plan are still unclear, but it would fulfill a promise Trump has made throughout his political career: restricting birthright citizenship.
Implementation would be no easy task, but the Trump administration probably wouldn’t get very far anyway, at least at first. Any action Trump takes to deny citizenship to children born in the United States to undocumented parents will immediately be questioned by pro-immigration groups and civil rights organizations. And conservative immigration groups are optimistic that the matter could eventually end up before the nation’s highest court, which they hope will rule in their favor.
“What will happen is that they will sue the government, the case will go to the Supreme Court and we will finally get a final decision on this matter,” said Hans von Spakovsky, senior fellow for legal and judicial studies at the conservative Heritage Foundation. “The last case on this was in 1898, so it was a long time ago. And I actually think that when the Supreme Court looks at this, they will realize and defend what Trump is doing.”
Trump’s speech about ending birthright citizenship is already setting the stage for one of the first major legal battles of his second term. And his effort could be one of his first major moves to dramatically reform the immigration system upon his return to office.
When asked about the plans, Trump’s transition team referred POLITICO to the president-elect’s comments during his interview with NBC News last weekend.
The president-elect has repeatedly said he plans to end birthright citizenship in the United States from day one (he reiterated this promise during the interview that aired Sunday), without providing details on how he would get around the 14th Amendment to the Constitution.
Birthright citizenship arose from the year after the end of the Civil War, when Congress wanted to ensure that the children of formerly enslaved people received U.S. citizenship. The amendment says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The accepted interpretation today, supported by a multitude of jurists on both sides of the political spectrum, is that a child born in the United States is automatically a citizen, even if the parents do not have legal status (this excludes foreign diplomats working in the United States). country).
But conservative immigration groups have argued that this should not apply to children of undocumented immigrants because of the “subject to your jurisdiction” language, which they say has been misinterpreted.
The Supreme Court has never ruled directly on the issue, but that could change if the high court accepts potential legal challenges. The justices last considered the issue during an 1898 case, United States v. Wong Kim Arkwhen the court ruled that a man born in San Francisco to Chinese parents, who were legally admitted to the country, was a U.S. citizen. Restrictors interpret this ruling to mean that only those who reside in the United States with permission meet the 14th Amendment’s requirement to be “subject to the jurisdiction” of the United States.
Immigration to the United States has increased in recent years and the DHS estimates that 11 million people are in the United States without legal authorization. Trump played up fears about illegal immigration throughout the 2024 presidential campaign, both with his base and voters generally, and Democratic and Republican state leaders have struggled to manage the influx of immigrants arriving in their states. When Trump said his administration could try to end birthright citizenship in 2018, a Pew Research Center Analysis Government data found that about 250,000 babies were born to undocumented immigrants in 2016, a decline from the early 2000s.
“It will be good to bring the case back to the Supreme Court and re-litigate it,” said Michael Hough, director of federal relations for NumbersUSA, a group that works to reduce both legal and illegal immigration. “The intent was not the system we have now, and the urgency is that whatever number you accept (10 million, 15 million illegal immigrants come across), well, all the children they have will become citizens. of the United States.”
While there is no guarantee the Supreme Court will uphold the restrictive interpretation of the 14th Amendment, conservatives hope the court, made up of three Trump-appointed justices, will restore what they see as its intended meaning. And they are preparing for a battle that could last years in court to get that answer.
“Ultimately, this will be a long-term process. It’s probably one that will have to be extended to [JD] Vance,” said Dan Stein, executive director of the Federation for American Immigration Reform, a restrictive group. “I mean, this isn’t all going to be resolved in the first 100 days.”
During Trump’s interview on Sunday, while promising to end birthright citizenship, the president-elect also suggested he would look for ways to allow people brought to the United States illegally as children to remain in the country. He attempted to rescind the Deferred Action for Childhood Arrivals program that protected them from deportation during his first term, but the Supreme Court blocked that effort.
Immigration advocates say the interview shows how the incoming president’s stance on immigration is rife with contradictions. Over the past year, pro-immigration groups have been preparing for a second Trump administration’s efforts to overhaul the nation’s immigration system, analyzing Trump’s proposals, drafting legal briefs, coordinating messaging and organizing help for immigrants and applicants. asylum, and they don’t. buy the idea that Trump is looking for a compromise.
“We trust Trump’s word and record,” said Beatriz López, co-executive director of the Immigration Hub. “We recognize this scenario: It is Lucy and soccer where citizenship for Dreamers is a possibility if Democrats are willing to change the constitution to end birthright citizenship and deport parents of Dreamers and millions of other undocumented people. . That is not a commitment; “That is a ransom letter.”
