Birthright citizenship under attack

Throughout his campaign, President Trump maintained that he never read and had nothing to do with “Project 2025,” the handbook for a new conservative government, published by the Heritage Foundation as “The Mandate for Leadership: The Conservative Promise.” 

He adamantly insisted, “I haven’t read it. I don’t want to read it purposely. I’m not going to read it.”

Nevertheless, after getting elected, he appears to have changed his mind. A CNN analysis concluded that of the 53 executive orders and actions from his first week in office, more than two-thirds—36—evoked proposals outlined in Project 2025’s 922-page detailed blueprint for the next Republican president. 

Few are more controversial than Mr. Trump’s objective to eliminate Birthright Citizenship. In his executive order titled “Protecting the Meaning and Value of American Citizenship,” the president stipulates that, beginning 30 days from the date of his order—January 21—children born in the United States will no longer automatically acquire citizenship. The president declared: “It is ridiculous.” He mistakenly  claimed that “We are the only country in the world that does this with the birthright as you know, and it is absolutely ridiculous.” In reality, more than 30 countries across the world offer citizenship as a birthright, although some have attached some conditions.

Mr. Trump’s obsession with birthright citizenship was not unexpected. He targeted the issue as well during his first term in office. Almost immediately upon his announcement, 22 states sued to stop the order from taking effect. Judge John C. Coughenour, a senior judge of the U.S. District Court for the Western District of Washington granted a temporary restraining order, blocking the executive order from taking effect. He summarized his decision by stating, “I’ve been on the bench for four decades. I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.” Legal minds agree that the termination of birthright citizenship constitutes a clear constitutional violation and is the most legally precarious of all executive orders the president has issued thus far.

The 14th Amendment to our Constitution—passed by Congress on June 13, 1866, and ratified by the states on July 9, 1868— clearly states 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 validity of the amendment was confirmed by the Supreme Court in the case of “United States v. Kim Ark” in 1898. This case established that “Subject to the jurisdiction thereof” applies to everyone who is not a diplomat or a soldier in an invading army.

The 14th Amendment was designed to protect the civil liberties of people who recently had been freed from slavery. The “birthright clause” was based on a principle in English law in the early 17th century by a ruling that anyone born in a place subject to the King of England was a “natural-born” subject of England.

Birthright citizenship has nothing to do with one’s parents. Congress could decide tomorrow to stop granting citizenship to those born to an American parent abroad, but it does not regulate citizenship of those born on U.S. soil. The 14th Amendment contemplates two sources of citizenship—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the form of law. Citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.

Taking away birthright citizenship from children born on U.S. soil would not be simple. Doing so would only be possible through the passage of a new constitutional amendment, requiring a two-thirds vote in both the House and the Senate, as well as ratification by three-quarters of the states.

Alternatively, the U.S. Supreme Court could adopt a more restrictive interpretation of the Citizenship Clause of the 14th Amendment. This would require the Court to radically deviate from the well-established precedent that cements the fact that children born in the country are lawful citizens regardless of their parents’ immigration status.

Gerald Neuman, professor of International, Foreign and Comparative Law at Harvard Law School, joins virtually all legal scholars in the country by bluntly stating, “The president of the United States has no authority to change citizenship rules at all.” President Trump’s Executive Orders may comply with guidelines outlined in the blueprint published by Project 2025. However, they must be based on existing statutory powers granted to him by the Constitution to be legally enforceable.