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“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.”
This is a direct quote from the 14th Amendment, and it has long been the absolute rule that if you were born in the United States or one of its territories, you are automatically considered a U.S. citizen at birth. Yet, in today’s political climate, many people have reason to fear that something they have taken for granted – birthright citizenship – can be torn down in an instant, even though its roots have run deep into America’s past for well over a century.
Has Birthright Citizenship Always Been Part of the U.S. Constitution?
The short answer is “No”! Birthright citizenship wasn’t part of the U.S. Constitution until the 14th Amendment was introduced in 1868. Before then, certain people—such as enslaved people of African descent—were not legally considered citizens and didn’t hold the same rights as others in the nation. Then, in 1989, the Supreme Court clarified that a child born in the U.S. is automatically considered a citizen even if their parents were born abroad.
Is Birthright Citizenship Under Threat?
Former president Donald Trump will soon be heading up a new administration in the White House. He has insisted that on day one of his presidency, he will make Federal agencies deny citizenship to all children born in the United States to unauthorized immigrant parents. He is basing his plan on the idea that his political enemies are misinterpreting the 14th Amendment, and his administration will apply a “correct” interpretation of what makes someone an American citizen. His real goal is to discourage “birth tourism,” in which some people visit the U.S. to give birth to children who will be considered American at birth, with all the rights of citizens.
This leads to the most essential question:
Can a President Use an Executive Order to Take Away Birthright Citizenship?
The fact is that a U.S. president cannot use an executive order to deny citizenship to people born in the U.S. or its territories. To do so would require changing the 14th Amendment, a highly complex process that would lead to years of legal battles. Additionally, not only would such a proposal need agreement from two-thirds of the House and Senate, but three-quarters of the states would also have to approve the decision. This is why no sitting U.S. president has ever attempted to push a law that would take away or end birthright citizenship.
What about immigrants in the U.S. who are awaiting or seeking routes to gaining legal status and who may have children in the meantime? Rest assured – no president can use an executive order to take away the right to citizenship from children born on American soil, no matter how their birth came about or where their parents were born.
If you’re concerned about birthright citizenship or how any new immigration law could impact you, contact U.S. Immigration Law Counsel for a strategy session to discuss your case.
