If Donald Trump returns to the White House, he will probably not be able to achieve his stated goal of abolishing birthright citizenship in the United States, but he will probably be more thoughtful than he was during his first term, legal experts say. It is said that there is a high possibility that
The U.S. Constitution guarantees citizenship to anyone born in the country, even if they are the children of illegal immigrants.
The president-elect said he would abolish that right during his first term. Also recently In a television interview, he said he intended and might take presidential action, or “maybe we have to go back to the people.”
This goal coincides with President Trump's plan to carry out mass deportations of millions of undocumented immigrants during his second term, an ambition that civil liberties groups and many Democrats have criticized for economic reasons. , bracing for legal turmoil and protests.
But scholars say that if President Trump were to try to use executive action to abolish birthright citizenship, courts would likely reject it because of language contained in the 14th Amendment. .
Still, the Supreme Court has a conservative majority, and one potential Supreme Court nominee has argued that the provision does not apply to children of “invading aliens.” Given this fact, there is no certainty that birthright citizenship will remain. “This is a very important decision,” said Amanda Frost, a law professor at the University of Virginia and an expert on immigration and citizenship law.
“If you asked me at the end of his last presidential term, 'Is this something he could do?' I would have said, 'That will never happen.' It’s just a buzz,” Frost said. “While the text of the Constitution, case law, long-standing practice and purpose of the provisions all say 'no,' at the end of the day, the Constitution means what the five members of the Supreme Court say it means.”
Birthright citizenship dates back to the passage of the 14th Amendment to the Constitution in 1868 after the American Civil War. Dred Scott's decisionthe Supreme Court held that enslaved people are not U.S. citizens.
The amendment declared that “all persons born or naturalized in the United States and subject to its jurisdiction are nationals of the United States and of the state in which they reside.”
“This is not the subject of a unilateral executive order,” he said. Andrew Rudalevidgea professor at Bowdoin College who has studied the American presidency and written a book about the limits of presidential power. “The language of the 14th Amendment is very clear.”
But in 2018, President Trump said he could and would issue an executive order to abolish citizenship rights for noncitizen children born in the United States. He also inaccurately stated that the United States is actually the only country that recognizes birthright citizenship; many countries give the same rights.
“The United States is the only country in the world where a person can come in, have a baby, and that baby can essentially be a U.S. citizen for 85 years and get all these benefits. That’s ridiculous. It’s ridiculous, and we need to end it. We must,” President Trump said. during the interview On HBO.
President Trump then recently said on Meet the Press that while he did not take any executive action during his first term because he needed to “solve coronavirus first,” he said he would do so on the first day of his new administration. said.
Supporters of repealing birthright citizenship argue that the “jurisdiction” language could exclude children of illegal immigrants.
Republican Utah Sen. Mike Lee: “Congress has the power to define what it means to be “born in the United States and subject to the jurisdiction of the United States.'' Posted in X. “Although current law does not contain such a restriction, Congress may in the future exclude individuals born in the United States who are natural-born citizens, up to undocumented persons, who are born in the United States and subject to its jurisdiction.'' ' could pass a law that defines what it means.'
UCLA law professor Adam Winkler said there is no “legal understanding of the term jurisdiction” to support the claim that “illegal immigrants are not subject to U.S. jurisdiction.”
“The government has power over them, and that's what our jurisdiction means,” Winkler said. “If conservatives were willing to say that illegal immigrants can never be imprisoned for a crime, maybe they could start getting somewhere. But that's not the conclusion they really want to reach. I think so.”
James Ho, a judge on the U.S. Court of Appeals for the Fifth Circuit and appointed by President Trump, who some have speculated could be appointed to the Supreme Court if a vacancy becomes available, recently said: reason magazine “No one has ever claimed that the children of invading aliens are entitled to birthright citizenship.”
He used to opposing opinionwrites: “Birthright citizenship is guaranteed by the Fourteenth Amendment to the Constitution. That birthright is as protected for the children of illegal aliens as it is for the descendants of the Mayflower passengers. ”
Frost believes the Supreme Court is unlikely to overturn birthright citizenship, but noted that the court could be influenced by public sentiment.
For example, in 1986 the Supreme Court ruled that the Fourteenth Amendment does not prevent states from: criminalize private sexual acts Activities involving same-sex couples. Then, in 2003, the court overturned that decision and declared all sodomy laws unconstitutional.
“Constitutional amendments generally occur through the accumulation of diverse voices and public opinion in support of the constitutional amendment,” Frost said.
President Trump did not clarify what he meant when he said that abolishing birthright citizenship “may require going back to the people.”
but, amend the constitutionAmendments must be proposed by the Legislature with a two-thirds majority in both houses of Congress, something that hasn't happened since 1992, or by a constitutional convention convened by two-thirds of state legislatures. In that case, three-quarters of the state legislatures would need to ratify it.
“This is quite a procedural hurdle in terms of getting a supermajority in Congress and getting approval from a supermajority of states,” Rudalebige said. “That's a pretty high bar.”
But for Trump, even if he can't muster support for a constitutional amendment or a court strikes down an executive order, “he's still fighting and trying to change the established society.” It is possible to conclude that “we gain value by demonstrating this attitude.” Even if your merits are wrong, the way you do business is right,” Rudalevige said.
Should President Trump abolish birthright citizenship, the changes would have a negative impact on the country, the scholars said.
“The 14th Amendment is meant to end caste in America, the idea that there is an underclass, a subclass among us,” Frost said. “Maybe this will bring things back to normal.”
