Ending Birthright Citizenship Is Harder Than It Sounds

Donald Trump has renewed his pledge to end a long-standing constitutional right, saying he would sign an executive order on day one ensuring children born to parents who do not have legal status will not be considered U.S. citizens, as they are now.

“The United States is among the only countries in the world that says even if neither parent is a citizen or even lawfully in the country, their future children are automatic citizens the moment the parents trespass onto our soil,” Trump said. What are Trump’s chances of success with such an executive order?

Since the end of the Civil War, any child born in the U.S. (excluding the children of foreign diplomats, who are not born “subject to the jurisdiction of the United States”) is a citizen, the doctrine of jus soli. This right is written into the 14th Amendment to the Constitution (1868), which says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The language was included in the constitutional amendment enacted after the Civil War to ensure former slaves and their children were recognized as citizens.

The rule is simple: being born in the U.S. equals citizenship for almost everyone. It does not matter if one or both parents is an illegal alien or in some other status, such as a tourist (see “birth tourism,” below). A change to the rule, which Trump again proposes (Trump pledged to end birthright citizenship when first running for president in 2015 and he raised it again in 2018 as chief executive—but he never issued an executive order), would have to confront, among other challenges, the fact that birthright citizenship has been subjected to legal tests dating back to the turn of last century. It is possible the Supreme Court would not even hear the new case as the law is so clear.

Chief among these tests was Wong Kim Ark v. United States (1898). Wong concerned a Chinese man born in the United States to two non-citizen parents. Under the 14th Amendment, he was granted American citizenship at birth. He left the U.S. and upon return was denied entry based on the Chinese Exclusion Act, which prohibited Chinese citizens from entering. Wong fought the case to the Supreme Court, which ruled in his favor, declaring him and all subsequent children born in the U.S. (except those of diplomats) citizens regardless of their parents’ status. The later case of Plyler v. Doe (1982) eliminated any doubt over whether Wong applies to all aliens, even illegal aliens.

The Supreme Court’s majority concluded the phrase from the 14th Amendment “subject to the jurisdiction thereof” referred to being required to obey U.S. law; on this basis, they interpreted the language of the 14th Amendment in a way that granted U.S. citizenship to children born to foreigners. The dissenters argued being subject to the jurisdiction of the United States meant not also being subject to any foreign power, i.e., not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent). That reading, in the minority’s view, would exclude “the children of foreigners, happening to be born to them while passing through the country.”

The judgment was controversial from the start; an editorial published in the San Francisco Chronicle on March 30, 1898, expressed concern Wong “may have a wider effect upon the question of citizenship than the public supposes.” Specifically, that it might lead to citizenship and voting rights not only for Chinese, but also Japanese and American Indians. The editorial suggested that “it may become necessary… to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

All of this could affect birth tourism. In his last administration, Trump issued an executive order outlawing B1/B2 tourist visas for birth tourism, where an alien comes to the U.S. specifically to give birth here and “create” an American citizen, an “anchor baby,” who will file for legal status for his parents at age 21. Prior to Trump’s EO, traveling to the U.S. to give birth was fundamentally legal, although there are scattered cases of domestic authorities arresting operators of birth tourism agencies. Women abroad were often honest about their intentions when applying for visas and even showed contracts with doctors and hospitals to prove they would not become public charges.

As it stands, visitors will be denied temporary visas if it is found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not apply to the 39 countries in the Visa Waiver Program, and the State Department in implementing the EO forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order hard to enforce.

“This is the first recognition that it’s not OK to use a visitor visa for the purposes of ‘birth tourism,’ so it has a symbolic strength in that respect, at the same time it’s not a very effective way at going after the ‘birth tourism’ industry,” said an analyst at the Migration Policy Institute. While the federal government does not specifically track birth tourism, the Centers for Disease Control and Prevention annually publishes the number of known births in the U.S. to foreign women who reside overseas—around 10,000 such births every year for the past few years.

If Trump were to follow through on his plan to issue an executive order on day one, here’s how it might unfold. The Trump campaign said it would order the Social Security Administration to refuse to issue Social Security numbers to newborn children without proof of the parents’ immigration status. Trump would issue the same order to the State Department regarding passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly rub against the 14th Amendment.

Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department currently considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue.

This means the Trump EO would likely be challenged immediately in lower courts and because it does not directly address the 14th Amendment, would be ripe for the Supreme Court to revisit Wong indirectly if they wished to. The Court could also side with long precedent and refuse to even hear the case. The latter is the most likely outcome, and Trump’s third try at changing birthright citizenship would end just like his earlier two.

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