Can Trump end birthright citizenship? Very unlikely, say legal eagles

The announcement by President-elect Donald Trump about ending birthright citizenship on his first day in office has drawn strong criticism from constitutional experts.

The 14th Amendment to the US Constitution guarantees that every child born “within the jurisdiction of the United States” is a US citizen, regardless of their parent’s immigration or citizenship status.

In his maiden interview with a TV channel after his re-election last month, the president-elect appeared eager to deprive US-born children of automatic citizenship.

“We’re going to… get it changed,” Trump said, while falsely asserting that the US was the “only country” that promises birthright citizenship to children regardless of the legal status of their parents.

As many as 34 countries—including Canada and Mexico, the only two countries with which the US shares a land border—give birthright citizenship to children born on their soil.

Legal scholars say the US president has “no power to overturn” the constitutional right to citizenship to anyone born on US land.

According to Geoffrey Hoffman, a professor at the University of Houston Law Center, any presidential order attempting to change the status quo would almost certainly face legal challenges.

Trump did not explicitly say during the interview if he would opt for a constitutional amendment to undo birthright citizenship or simply issue executive orders to federal agencies to achieve his goal.

Constitutional amendment: ‘Unlikely’

A report by The New York Times said Trump amending the constitution to take away birthright citizenship is “unlikely to happen” because of the procedural difficulties.

There are only two ways the US constitution can be amended. The first one involves congressional proposal and state ratification. Under this mechanism, an amendment is proposed by a two-thirds vote in both the US House of Representatives and the Senate.

The proposed amendment must then be ratified by three-fourths (38 out of 50) of the state legislatures.

All of the 27 amendments to the US constitution so far were made through this method.

The other possible, but never tested, method to change the US constitution involves two-thirds (34 out of 50) of the state legislatures calling for a national constitutional convention to propose amendments.

Any amendments proposed by the convention must then be ratified by three-fourths (38 out of 50) of the state legislatures.

Given the highly partisan nature of the issue, Democrats in state and federal legislatures are unlikely to join hands with their Republican counterparts to amend the US constitution to end birthright citizenship.

Perils of executive action

Unlike a constitutional amendment that has never been invalidated by the US Supreme Court, executive orders of the US president have routinely faced judicial review in the past.

According to Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union (ACLU), a US nonprofit civil rights organisation, the US president cannot erase the constitution with an executive order as the constitutional citizenship guarantee remains “clear”.

“This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred,” he said in response to Trump’s unsuccessful attempt to end birthright citizenship during his first term as president (2017-21).

His earlier attempt to eliminate birthright citizenship fizzled out because of other pressing issues. “I was going to do it through executive action, but then we had to fix Covid first, to be honest with you,” he said.

According to Dr Michele Waslin, an immigration policy analyst, the principle of birthright citizenship predates the US constitution.

In an 1857 case, the Supreme Court denied citizenship to the children of slaves. The 14th Amendment, enacted following the Civil War (1861-65), righted that injustice, becoming the foundation for civil rights law in the US.

In response to a hearing held by the House Judiciary Committee in 2015 to attack birthright citizenship, former fellow of the American Immigration Council Mark Noferi wrote that any attempt to repeal the constitutional provision was unlikely to be upheld by the US Supreme Court.

“The Supreme Court has upheld birthright citizenship for children of foreigners several times… Moreover, repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the US in large numbers just to give birth.”