Can Lame Duck President Trump Take Away Birthright Citizenship with an Executive Order?

The Trump administration has revived discussions around taking executive action targeting birthright citizenship in its final weeks before leaving office, The Hill reported quoting two people familiar with the discussions.

“Drafts of a possible (Executive) order have been circulating for some time, and there is now internal discussion about finalizing it before the Biden administration takes over in January,” The Hill reported citing unnamed sources.

In August 2015, Trump told a press conference that American-born children should not be citizens if their parents are undocumented. “A woman is getting ready to have a baby, she crosses the border for one day, has the baby, all of a sudden for the next 80 years, hopefully, longer, but for the next 80 years, we have to take care of the people. No, no, no, I don’t think so … There are great legal scholars, the top, that say that’s absolutely wrong.” 

Abolishing birthright citizenship has been on Trump’s election manifesto even before becoming the Republican nominee for President. Trump thinks about citizenship a lot. His entry into political discussions did start with attacking the President Obama’s status as a birthright citizen.

Birthright Citizenship is a Constitutional Right

Trump does not seem to be a fan of the 14th Amendment, which clearly states in its Citizenship Clause that “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.”

Trump quotes many constitutional scholars who have for a very long time, interpreted that the Constitution does not mean what it says. Other Constitutional scholars opine that the Constitutional clause means exactly what it says. The Fourteenth Amendment authors were clear that the United States is one nation, with one class of citizens, and that citizenship extends to everyone born here.

What Could this Executive Order ask Federal Agencies to do?

This order could instruct federal agencies to refuse to recognize the citizenship of children born in the United States if their parents are not citizens. However, it is unclear whether the order would target only American-born children of undocumented immigrants, children of foreigners visiting the U.S. on nonpermanent visas — or the children of any noncitizen.

It is unclear whether the order would target only American-born children of undocumented immigrants, children of foreigners visiting the U.S. on nonpermanent visas — or the children of any noncitizen.

At its base of the attack on Birthright Citizenship is the idea that children born in the U.S. are not citizens if they are born to noncitizen parents. The whole notion contradicts the Fourteenth Amendment’s citizenship clause. Such an amendment would create a phantom population of American-born people who have no state, no legal protection, and no fundamental rights that the government is bound to respect.

The History of the 14th Amendment

The Fourteenth Amendment to the Constitution is a key to the egalitarian, democratic Constitution that emerged from the Civil War slaughter. In 1857, the pro-slavery majority of the Supreme Court held that race was the basis of any citizenship. 

In Dred Scott v. Sandford, Chief Justice Roger B. Taney wrote that African descent people were not American citizens and never could become citizens, even through an act of the Congress.

At the time the Constitution was written, he wrote, black people were “regarded [by whites] as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

The judgment provoked a wave of hatred all through the free states and accelerated the Civil War. Since the founding of the republic in 1789, opponents of slavery insisted that American citizenship had always been the birthright of all people born in the United States. 

After the Battle of Appomattox that ended the Civil War, the 39th Congress met with the urgent purpose of undoing the constitutional damage wrought by Chief Justice Taney and what they called the “Slave Power.” 

The result was the 14th Amendment. Here is the wording of Section 1:

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.

At the heart of this clause is the idea that citizenship in the United States is universal—that we are one nation, with one class of citizens, and that citizenship extends to everyone born here. Citizens have rights that neither the federal government nor any state can revoke at will; even undocumented immigrants — “persons” in the amendment’s language—have rights to due process and equal protection of the law.

How do Trump’s Legal Advisors Interpret the Fourteenth Amendment?

The citizenship-denial lobby has concentrated on the words “subject to the jurisdiction”in Section 1 to the 14th Amendment. Its proponents argue that citizens of foreign countries, even if they live in the U.S., are not subject to U.S. jurisdiction, and thus their children are not covered by the clause. 

So technically, that would mean that if a foreign citizen murders someone in the United States, the law enforcement will have no grounds to arrest, try or even punish that person because they are not “subject to the jurisdiction.”

For now, foreign citizens are “subject to the jurisdiction” of our police and courts when they are in the U.S., whether as tourists, legal residents, or undocumented immigrants. Only one group is not “subject to the jurisdiction,” Those are accredited foreign diplomats and their families, who can be expelled by the federal government but not arrested or tried.

What do the Scholars Say?

James Ho, Circuit Judge on the U.S. Court of Appeals for the Fifth Circuit, writes in his celebrated paper on the issue of Subject to Jurisdiction: “To be “subject to the jurisdiction” of the U.S. is to be subject to the authority of the U.S. government. Thus, the phrase covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey. Common usage confirms this understanding. When we speak of a business that is subject to the jurisdiction of a regulatory agency, it must follow the laws of that agency, whether it likes it or not. When we speak of an individual who is subject to the jurisdiction of a court, he must follow the judgments and orders of that Court, whether he likes it or not.”

Justice Antonin Scalia noted when a statute renders a particular class of persons “subject to the jurisdiction of the United States,” Congress “has made clear its intent to extend its laws” to them. Of course, when we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the U.S. Criminals cannot immunize themselves from prosecution by violating Title 18. Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law. Accordingly, the text of the Citizenship Clause plainly guarantees birthright citizenship to the U.S.-born children of all persons subject to U.S. sovereign authority and laws. The clause thus covers the vast majority of lawful and unlawful aliens. Of course, the jurisdictional requirement of the Citizenship Clause must do something – and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most notably, foreign diplomats and enemy soldiers – as agents of a foreign sovereign – are not subject to U.S. law, notwithstanding their presence within U.S. territory.”

The framers of the clause understood about immigration. The issue had been a divisive one throughout the 1850s, creating the Know-Nothing movement and state attempts to bar immigrants from citizenship. The percentage of foreign-born residents of the U.S. in 1866 was just over 13 percent—roughly what it is today.

Three decades later, when the government tried to meddle with the clause by denying citizenship to Wong Kim Ark, the child of Chinese immigrants who were themselves not eligible for citizenship. 

The Supreme Court reaffirmed that the clause meant what it said. No matter where their parents were born, no matter what their parents’ status, American-born children are Americans. And that’s how it should be.

Can an Executive Order change the Constitution?

Constitutional amendments must be approved by a two-thirds vote of Congress and three-quarters of the state legislatures. That means every political candidate will have to take a stand from the state level up, creating a conversation at all levels.

Since the Equal Rights Amendment’s defeat in 1982, no significant social or political movement has seriously attempted to amend the Constitution to accomplish its goals.

What would this Executive Order Achieve for the Republicans?

If the administration attempts to strip citizenship from millions of Americans—millions of people who have never known any other country—America will become a dictatorship. The executive order cannot be enforced without an enormous apparatus of internal control. 

Immigration and Customs Enforcement will become the framework of national citizenship police. Each person in the United States jurisdiction must then be ready to prove our citizenship in the nation at any moment. Stateless and homeless, many Americans will face persecution, detention, and abuse. Internment camps would be a logical next step.

The reason why Trump may be contemplating such an unconstitutional Executive Order may also be because he wants to open up the discussion to his packed conservative courts. 

Would the current Supreme Court uphold a narrower view of birthright citizenship today? Curtailing the Citizenship Clause’s scope would be a seismic shift in constitutional law, beyond even Citizens UnitedorObergefell v. Hodges (right to marry is guaranteed to same-sex couples). But that may not prevent the Supreme Court from weakening the clause.

Recent history shows that the easiest way to change the Constitution is not to amend it but instead to change how the Constitution clause is interpreted. With a 6-3 conservative majority, we face a considerable risk of just that happening.

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Meera Kaul is a Silicon Valley-based author and contributor with an interest in writing about political systems, economic and legal frameworks, foreign relations, policies, and ideologies. 26+ years of experience in executing ventures across three continents. Thomas Jefferson School of Law and Stanford GSB Alum.