President Donald Trump has announced that he plans to sign an executive order that will end birthright citizenship for children born on U.S. soil to non-American citizens. If the President follows through with this promise, the decision would defy the Fourteenth Amendment to the U.S. Constitution. Adopted in 1868, the Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” This provision of the Constitution is known as the Citizenship Clause.
It is unclear whether President Trump actually has the authority to implement the proposed policy, considering the fact that birthright citizenship is engraved in the Fourteenth Amendment. According to Trump, however, “[i]t was always told to me that you needed a constitutional amendment. Guess what? You don’t. You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.” In reality, amending the U.S. Constitution was never meant to be that simple. In fact, Article Five prescribes only two ways to amend the Constitution: (1) Congress can propose an amendment, which must then be approved by both Houses and ratified by three-fourths of the States; or (2) the States can, by a two-thirds vote, demand that Congress convene a full constitutional convention.
Even though ratifying the Constitution is unlikely, the President could instead be relying on the ambiguous language of the Fourteenth Amendment itself. Legal scholars argue that the wording “subject to the jurisdiction thereof” has “no plain meaning” and the “current, broad application of the Citizenship Clause may not be warranted.” Regardless, the President did not state when he would sign the order, and even if he actually does, it will undoubtedly be challenged, and the policy will likely be put on hold until the courts have time to sort through the legality of such a move.
Berardi Immigration Law will continue to closely monitor this and keep our clients updated with the most recent information.