President Donald Trump followed through on a campaign promise Monday to move to remove the guarantee of citizenship for some children born on U.S. soil.
As part of a flurry of first-day actions, Trump signed an executive order removing the right of automatic citizenship for children whose parents are either in the country illegally or with only a temporary legal status. Opponents and legal experts say it runs afoul of the 14th Amendment, but the issue is likely to be decided in the courts — where experts say things are less certain.
So far, at least 22 states, the District of Columbia, and immigration rights groups have challenged the order in court, attempting to block the change before it takes effect on Feb. 19.
Passed in the wake of the Civil War, the 14th Amendment 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.”
But St. Mary’s School of Law Visiting Assistant Professor Annie Bright, a former immigration attorney, said the idea of birthright citizenship existed long before then, and “the 14th Amendment simply removed racial barriers to that.”
An 1898 U.S. Supreme Court case, United States vs. Wong Kim Ark, also found that the son of Chinese immigrants born in the United States was also a citizen, despite racist, anti-Chinese laws at the time.
“In terms of the history and legal precedent, no, it (birthright citizenship) should not be removed. But the question is, ‘will the Supreme Court agree?’” Bright said.
Both Bright and University of Texas Professor Sanford Levinson, a constitutional law expert, say that’s a much harder question.
“So if you believe in precedent — which a lot of lawyers claim to believe in and which some members of the current Supreme Court claim to believe in — then it’s an open and shut case. The issue was decided in 1898,” said Levinson.
“On the other hand, it is very clear that the current Supreme Court has no great regard for precedent, per se. Just look at the Dobbs decision that overruled Roe v. Wade, the 50-year-old decision on reproductive rights. There is no true predicting what the current Supreme Court will do. You know, we’re in the Wild West right now.“
Levinson said there’s also a question of whether the president has the power to change the law unilaterally through an order without congressional action.
“So all of these things come together to suggest that what Donald Trump is really doing is throwing red meat to his political base and that he really doesn’t care whether it’s constitutional or not because he wins either way,” Levinson said.
“If the courts rule against him, he will immediately attack the courts for being in the hands of, you know, a liberal cabal. And so, from his perspective, it’s win-win.“
