An Overview of Birthright Citizenship

President Trump recently acknowledged that his administration has been looking into using an executive order to end birthright citizenship. This declaration prompted a flurry of reactions from confusion to outrage. Birthright citizenship seems to be securely enshrined in the Fourteenth Amendment. The Fourteenth Amendment, ratified in 1868, provides that, “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.” The plain language of the amendment appears to provide that any child born in the United States automatically becomes a citizen of the United States even if that child’s parents are not citizens. When the amendment was ratified, it was meant to exclude only diplomats’ children and Native American children (who were finally granted American citizenship under the Indian Citizenship Act of 1924) from its protections. Birthright citizenship was tested in an 1898 case, United States v. Wong Kim Ark, in which an American-born man of Chinese descent was denied reentry to the United States after a trip to China. The opinion, issued during an era of virulent anti-Chinese sentiment, upheld the idea of citizenship based on birthplace rather than on blood.

This principle is not, however, unique to America. Contrary to claims by Trump that only the United States extends birthright citizenship to children born within its borders, currently more than 30 countries offer some form of birthright citizenship. These countries include large, Western nations like Canada and smaller countries like Lesotho, Argentina, and Pakistan, although the practice is more controversial in countries that draw large groups of immigrants.

Some conservative commentators have declared that the president is right about his ability to eliminate birthright citizenship with the stroke of a pen; however, their support is limited. Most scholars (including constitutional law scholars like Laurence Tribe) have assumed that birthright citizenship can be done away with only through a constitutional amendment. Most conservatives who support the idea of ending birthright citizenship do not go so far, but they also do not agree that the president can do away with birthright citizenship by executive order. Instead, they argue that legislation passed by Congress and signed by the president would clarify who does and does not qualify for birthright citizenship under the Fourteenth Amendment. Conservatives claim that the Wong Kim Ark case addressed only citizenship for the children of legal residents and that a court ruling or legislation is necessary to determine if birthright citizenship extends to the children of residents who are not in the U.S. permanently or legally. Senator Lindsey Graham recently declared that he will introduce such legislation to amend the Constitution and do away with birthright citizenship.

It is significant that even those who wish to end birthright citizenship advocate the use of legislation rather than an executive order. In contrast to legislation (which may clarify or alter an existing law), an executive order is meant to enforce an existing law rather than to create a new interpretation of it or up-end an existing interpretation. If President Trump insists on trying to challenge birthright citizenship through an executive order, those efforts are likely to end in long and complex litigation.