With just a few weeks from returning to power, Donald Trump has revived a controversial and divisive idea: eliminating birthright citizenship for the children of undocumented immigrants born in the United States.
“We’re going to have to change it. We may have to go back to the people,” Trump said this weekend in an interview with NBC’s Kristen Welker. “We have to end this. It’s ridiculous.”
The proposal is not new. Trump proposed the plan through an executive order during his first presidential campaign in 2016, but now it is returning with greater intensity, in an attempt to strengthen his electoral base and ignite debates in a polarized country.
“I was going to do it through executive action, but then we had to solve COVID first, to be honest with you,” Trump said.
The reality is that ending birthright citizenship in the United States would likely require a constitutional amendment.
The 14th Amendment to the Constitution explicitly states: “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.”
This has been interpreted to mean that anyone born in the United States, regardless of the immigration status of their parents, is a citizen.
The U.S. Supreme Court case *United States v. Wong Kim Ark* (1898) upheld this interpretation for children of noncitizen parents who were lawfully present in the United States.
Although it did not directly address undocumented immigrants, this precedent supports the principle of birthright citizenship.
While Congress can pass laws to clarify certain aspects of citizenship, overriding a constitutional right such as birthright citizenship would likely exceed legislative authority. Such a law would almost certainly be challenged in court and face scrutiny under the 14th Amendment.
Amending the Constitution is a complicated process. It requires approval by two-thirds of the House and Senate, followed by ratification by three-fourths (38) of the state legislatures or a constitutional convention called by two-thirds of the state legislatures (a method that has never been used successfully).
Without an amendment or a radical reinterpretation of the 14th Amendment by the Supreme Court, birthright citizenship will remain a constitutional guarantee.
In other words, Trump can try to overturn that right, but it is a path fraught with thorns and legal challenges that make it unlikely that he will succeed. In addition, Republicans will have a slim advantage in the Senate and the House of Representatives, where Democrats oppose it. In other words, the plan is likely to end up in the ceremonial drawer of bad ideas.
