Why President Trump Can't End Birthright, But Some Think He Can

Most legal experts agree it would take a constitutional amendment to end birthright citizenship, but some disagree. Here's why.
Posted at 6:13 PM, Oct 30, 2018

President Trump is once again floating the idea to end birthright citizenship for children born to undocumented immigrants and non-U.S. citizens, a right many legal experts say is enshrined in the Constitution. 

"You can definitely do it with an act of Congress, but now they're saying I can do it just with an executive order," Trump said in an interview for Axios on HBO

But most legal experts say otherwise. 

"The president can't change it with an executive order, Congress can't do it with a statute. It would take a constitutional amendment to change that," said Trevor Burrus, a research fellow at the Cato Institute's Center for Constitutional Studies. 

The 14th Amendment says: "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."

"That was a really important part of the 14th Amendment after the Civil War to overturn the Dred Scott decision, which had said that African-Americans, even free blacks and all of their descendants, couldn't be citizens of the United States. So one of the first things they did was fix that," Burrus explained. 

But it’s the phrase "subject to the jurisdiction of" that has some questioning birthright citizenship. Not everyone born in America is subject to the jurisdiction of the United States. 

"That shouldn't be true of, say, the child of the Chinese ambassador. The Chinese ambassador and people who are here of the capacity, they're subject to the jurisdiction of China. That's why we have things like diplomatic immunity," Burrus explained. 

And some on the right claim that the children of undocumented immigrants are also an exception. 

"The other side of the argument is saying that illegal immigrants are not subject to the jurisdiction of the United States in a proper fashion because jurisdiction means something more like allegiance, and for illegal immigrants, they have not sort of given allegiance to the United States," Burrus said. "So they are also exempted by that clause. But this is wrong, because definitely illegal immigrants are subject to the jurisdiction of the laws of the United States. The laws can be put on them, they can be convicted of crimes, they can be convicted of different infractions." 

This isn't the first time Trump has brought up the idea of ending birthright citizenship. It's something he frequently championed on the campaign trail as part of his hard-line immigration platform. 

And it may be no surprise that Trump is raising the idea again with just one week to go before midterm elections. 

In 2015, only 37 percent of Americans supported changing the Constitution to bar citizenship for U.S.-born babies of parents who are not legal residents, according to the Pew Research Center. But 53 percent of Republicans surveyed said they did support such a change. 

"I think it's safe to say that anything within two weeks of the midterms is a midterm play," Burrus said. "It is true that a lot of Americans think that birthright citizenship is a crazy idea. That’s a policy disagreement, though, and if he's going to give sort of meat to his base, I think that trying to repeal birthright citizenship is that kind of meat." 

Republican Rep. Steve King of Iowa has introduced legislation to end birthright citizenship multiple times, and South Carolina Republican Sen. Lindsey Graham announced Tuesday that he would introduce a similar bill.