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“It’s a consensus view among legal scholars and lawyers that the 14th Amendment … prevents a president — or Congress — from eliminating birthright citizenship,” says Dan Urman, a Northeastern legal scholar.
During a sit-down interview with NBC’s Kristen Welker this week, President-elect Donald Trump doubled down on plans to end birthright citizenship — possibly, he suggested, through executive action.
“We’re going to end that because it’s ridiculous,” Trump said when asked about birthright citizenship, adding, in response to whether he would try to use his own authority: “Well, if we can, through executive action.”
Birthright citizenship refers to the principle that a person born in a particular country automatically, regardless of parental immigration status, becomes a citizen themselves. It has been practiced since the nation’s founding — though previously to the exclusion of certain groups, such as Native Americans and slaves.
But dismantling the right would be a tall order, regardless of political will, says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court.
“It’s a consensus view among legal scholars and lawyers that the 14th Amendment, which states that ‘all persons born’ in the United States ‘are citizens of the United States,’ prevents a president — or Congress — from eliminating birthright citizenship,” he says.
The birthright citizenship provision in the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Birthright citizenship is just one legal issue outlined in the 14th Amendment, a Reconstruction-era amendment that deals with a whole host of questions, from due process and equal protection, insurrection or rebellion, to congressional enforcement and the validity of public debt.
When a right is codified in the Constitution, including by a constitutional amendment, the only way to undo it is to get the Supreme Court to issue a new reading of the law, which Urman says is “unlikely, even with this conservative court.”
The other way is by amending the Constitution, which he says is “very rare and very difficult.” A constitutional amendment requires a supermajority of support (or two-thirds) in both congressional chambers, and then ratification by three-fourths of U.S. states — a steep task for any political coalition at any point in time. (The last time the Constitution was amended was in 1992.)
The Supreme Court first took up the issue of birthright citizenship in a 1898 case called “U.S. vs Wong Kim Ark.” It ruled that children of immigrants born in the U.S. are citizens “by virtue of the first clause of the Fourteenth Amendment of the Constitution,” the court wrote.
If Trump were to try to test the limits of his executive authority and upend the 14th Amendment, it could face formidable resistance, Urman says.
“Plenty of nonprofit groups would be ready to sue if Trump tried to get rid of birthright citizenship through an executive order,” he says. “He might try, but he would lose in court. Perhaps this is his point — he wants the issue to reach the courts — but he will likely lose.”
There are roughly 11 million unauthorized immigrants living in the U.S., according to the Migration Policy Institute, with hundreds of thousands of additional children of unauthorized immigrants being born annually.
Past polling suggests that a majority of Americans (60%, according to an Economist/YouGov poll) support birthright citizenship.
“We tend to amend the Constitution when there is a supermajority consensus on an issue, so I don’t think the political climate is right for it,” Urman says.