Scholars, Legal Experts Weigh-in on Trump’s Proposed Executive Order to Revoke Birthright Citizenship

With less than two months left before his departure, President Donald Trump has hinted at issuing an executive order targeting birthright citizenship, which grants U.S. citizenship to every child born in this country, regardless of the immigration status of the parents. Quoting sources, The Hill reported that there is now “an internal discussion” about finalizing the executive order before the Biden administration takes over in January. News reports suggest that Biden has vowed to undo Trump’s immigration policies and push Congress to craft an immigration deal. 

Although there is no confirmation that such an order will be executed, the speculation has once again brought to the forefront a much-debated issue. 

Scholars and legal experts have widely criticized the idea that Trump could unilaterally change the rules that determine who could be a U.S. citizen. Legal experts American Kahani spoke with, echoed that opinion saying that Trump cannot alter a rule that has been in the Constitution for over 150 years. It cannot be changed through executive order or legislation, but only by amending the Constitution, they noted. 

As per the 14th Amendment in the U.S. Constitution, “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 Hill, in its report said that although the Trump administration is aware that the executive order will be immediately challenged in court, sources said they “hope to get a ruling on whether the 14th Amendment protects birthright citizenship.” Some legal scholars argue that the 14th Amendment “was never intended to benefit the children of illegal aliens or legal foreign visitors temporarily present in the United States,” the Hill report said. 

Last-Ditch Efforts

Sharvari Dalal-Dheini, Director of Government Relations for the American Immigration Lawyers Association told American Kahani that even if Trump is banking on the current composition of the Supreme Court, it is “highly unlikely” that it will allow him to alter the language of the 14th Amendment to pass an executive order. She noted that the executive order is a “last-ditch” attempt from the Trump administration to further cement its anti-immigration rhetoric. “From issuing a travel ban to Muslim countries to separating families and children on the border, and from further clamping on H-1B and other work visa for immigrants and lengthening the citizenship test, this administration has done it all.”

Manisha Sinha, a professor of History at the University of Connecticut, believes there is another reason for this possible move. “Trump could be suggesting this executive order just for optics and to rile up his base,” she says. “The right has been attacking birthright citizenship for a long time now,” she says. “Trump will do and say anything that will stoke anti-immigrant feelings.” She agrees with Dalal-Dheini that the administration will not be successful in implementing the executive order. “It will be challenged immediately in the federal court system,” she says, and adds: “Even if you are a conservative judge, there’s no way you can justify this.”

On the other spectrum of this debate are those siding with the President like Prof. Amar who do not support these claims. Acknowledging that Trump will go to any lengths to make it tough on Biden and Harris as they take over in January, Amar doesn’t put it past Trump to pass the executive order soon. “With only 50 days remaining, it won’t be surprising at all to see Trump take the executive action,” he told American Kahani. 

This is not the first time that Trump has talked about restricting birthright citizenship. 

Even before his 2016 campaign, Trump had attacked President Obama’s right as a citizen for not being born in the U.S. The issue came into the forefront again this August when Trump questioned Vice President-elect Kamala Harris’ eligibility to run for the second-highest office in the nation, because her mother, Shyamala Gopalan Harris and her Jamaican father Donald Harris, were not yet citizens when they gave birth to her in Oakland, California.  

Politico says Trump made immigration the centerpiece of his 2016 campaign, as well as the 2018 midterm elections. “But in 2020, he talked less about the issue in large part because the election was overtaken by the pandemic, which has killed over 265,000 Americans and decimated the economy.”

In 2016, Trump even used the controversial term, “anchor babies,” while discussing immigration policy on the campaign trail. Trump first used the term during an interview with Fox News’s Bill O’Reilly while discussing whether an amendment to the Constitution would help deal with immigration reform.

Trump has falsely stated that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States with all of those benefits.”

An anchor baby is defined as an offspring of an illegal immigrant or other non-citizen. These children may instantly qualify for welfare and other state and local benefit programs. Additionally with the passage of the 1965 Immigration and Nationality Act, the child may sponsor other family members for entry into the United States when he or she reaches the age of twenty-one. This practice is often labeled as “chain migration.”

Two years later, a 2018 televised interview with Jonathan Swan of Axios just before the midterms, Trump had said he planned to issue an executive which would disallow children born in the U.S. to non-citizens to be entitled to U.S. citizenship at birth. Following the Axios interview, the Intercept, in its report had said Trump’s idea was “rejected by an overwhelming consensus of conservative and liberal law scholars.”

In the same Axios interview, Trump has falsely stated that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States with all of those benefits.” He continued: ”It’s ridiculous. It’s ridiculous. And it has to end.”

According to the Center for Immigration Studies, 39 countries, “most of which are in the Western Hemisphere,” currently offer birthright citizenship without exceptions to all children, except children of diplomats) born within their borders. No country in Western Europe offers birthright citizenship, the CIS report said. “Many countries, including France, New Zealand, and Australia, have abandoned birthright citizenship in the past few decades, it noted. “Ireland was the last country in the European Union to follow the practice, abolishing birthright citizenship in 2005..”

Despite Trump’s anti-immigration rhetoric, experts like Muzaffar Chishti, director of the Migration Policy Institute (MPI) office at NYU School of Law believe that his administration’s policies have not led to a marked drop in the number of permanent immigrants, temporary foreign workers, international students, and those receiving asylum in the United States. According to a Nov. 20 think piece on the Migration Policy website, Chisti co-authored with Jessica Bolter, Associate Policy Analyst with the U.S. Immigration Policy Program at MPI, “as the Trump tenure nears its end, analysis of immigration data shows that, despite public perception to the contrary, the administration’s policies have not led to a marked drop in the number of permanent immigrants, temporary foreign workers, international students, and those receiving asylum in the United States—at least not yet. In other words, with the exception of refugee admissions, there has not been a dramatic, across-the-board ‘Trump effect’ attributable either to the administration’s policies or rhetoric on immigration levels.”

Attempt to Curb Birth Tourism

In an attempt to curb birth tourism, the Trump administration tightened visa rules in hopes of stopping foreign women from traveling to the U.S. with the sole purpose of giving birth, effective Jan. 24. CIS estimates that birth tourism results in 33,000 births to women on tourist visas annually.

Despite the alarm over birth tourism, a blog on the American Immigration Council website observes that eliminating birthright citizenship would not solve the problem of unauthorized immigration. “Stories about ‘birth tourism’  point to small numbers of foreigners who come to the U.S. legally to give birth to their children,” the blog says. “It would be ridiculous to change the U.S. Constitution and impact every single American just to punish a few individuals.” Calling “anchor babies” a myth, the blog notes that “eliminating birthright citizenship is a distraction that moves us away from fixing the real problems with our broken immigration system.

Contradicting this claim, The Federal Register, the daily journal of the U.S. government claims that birth tourism poses risks to national security. “The birth tourism industry is also rife with criminal activity, including international criminal schemes, as reflected in federal prosecutions of individuals and entities involved in that industry,” it says. 

Experts believe that even if  an order targeting birthright citizenship fails on legal grounds, or it is quickly undone by the Biden administration, it could still have a chilling effect on those seeking to come to the United States. 

“That’s going to have a deterrent effect on people who are seeking to come here, who may be present,” says Dalal-Dheini. “The goal of this administration with all of its policies is it doesn’t matter if the policy actually takes effect and becomes the law of the land, but it’s what is the deterrent effect on people in the interim.”

While Sinha agrees that these anti-immigration policies are a hindrance to prospective immigrants, students and visitors to the U.S., she believes it is short-term. “These ill-digested political gestures will not have a larger impact on those wanting to visit this country she says “The Biden  administration will quickly renegotiate these rules,” she says. “These are relatively easy things to undo.”

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Bhargavi Kulkarni has been a journalist for nearly two decades. She has a degree in English literature and French. She is also an adventure sport enthusiast, and in her free time, she likes to cook, bake, bike and hike.