The U.S. Supreme Court will be reviewing President Donald Trump’s effort to implement his executive order aimed at terminating birthright citizenship, a practice that has been recognized in the U.S. for over 150 years.
This article will examine the concept of birthright citizenship and the legal authority surrounding Trump’s attempt to restrict it.
What is birthright citizenship?
In the U.S., anyone born on its soil is deemed a citizen at birth, a right established by the 14th Amendment added to the Constitution in 1868.
This amendment indicates, “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 where they reside.” The Immigration and Nationality Act of 1952 echoes similar sentiments.
However, there are exceptions; for example, children born to diplomats in the U.S. do not receive citizenship due to their parents’ diplomatic immunity.
If the court concludes that the Constitution safeguards birthright citizenship, changing it would necessitate constitutional amendments. Such amendments require a two-thirds majority in both Houses of Congress and ratification by three-fourths of the state legislatures. Notably, the Constitution hasn’t been amended since 1992.
According to the Department of Homeland Security, there were approximately 11 million undocumented immigrants in the U.S. as of January 2022, with estimates rising to 13-14 million. The children of these individuals are regarded as U.S. citizens.
What did Trump say about the executive order?
Trump signed the executive order shortly after assuming office on January 20th. He has directed federal agencies to deny citizenship to U.S.-born children unless at least one parent is a U.S. citizen or a lawful permanent resident.
This approach to tackling illegal immigration is among Trump’s most popular positions. He has often criticized the practice of “birth tourism,” where women enter the U.S. to give birth and secure citizenship for their children.
What has the Supreme Court stated previously?
The Supreme Court hasn’t clarified whether the citizenship clauses pertain to children of undocumented immigrants versus those born in the U.S.
The landmark case on birthright citizenship dates back to 1898 when the Supreme Court declared the son of a legal Chinese immigrant, born in San Francisco in 1873, as a U.S. citizen. Wong Kim Ark had been denied reentry into the U.S. after visiting China amid strict immigration laws.
Additionally, in 1884, the Supreme Court ruled that John Elk, born into a Native American tribe, was not a U.S. citizen and thus was not subject to U.S. jurisdiction. It wasn’t until 1924 that Congress formally granted U.S. citizenship to Native Americans.
What are Trump’s arguments before the Supreme Court?
Trump’s executive orders have faced legal challenges from three district courts for alleged constitutional violations.
The Trump administration is urging the Supreme Court to implement the executive order while limiting the lower court injunctions affecting specific plaintiffs, various organizations, and certain states, arguing that judges overstepped by issuing nationwide injunctions.
The administration has defended the executive order’s constitutionality but hasn’t directly sought a resolution from the Supreme Court, which holds a conservative majority of 6-3.
They argue that the term “jurisdiction” in the citizenship clause relates to “political jurisdiction.” This interpretation supports denying citizenship to children born in the U.S. to parents without legal residency. They claim the expansive application of birthright citizenship poses security risks by incentivizing illegal entry and granting citizenship to those who might be disloyal to the U.S.
What are the challengers’ perspectives?
Opponents of the executive order argue it contravenes the 14th Amendment, undermines Congressional power, and violates immigration regulations.
They contend that the executive orders create confusion by redefining citizenship based on birth location rather than parental status.
Controversies surrounding national injunctions issued by individual judges have arisen, with critics—sometimes even within the Supreme Court—questioning this practice. The challengers assert that a nationwide injunction is necessary to maintain consistent citizenship standards across the U.S.
