United States president Donald Trump has recently stated that he wants to revoke the constitutional provision of birthright citizenship (Axios), a legal standing that grants citizenship to anyone born on U.S. soil, even if their parents are not legal citizens or residents. He plans to do this by executive order, or, failing that, by way of the Supreme Court (Vox).
Some argue that neither option is legally possible (Intelligencer). Others argue that, not only might such a revocation be legal, but that it would comport with constitutional intent, national security interests, and international standards (relatively few (about 30) countries offer birthright citizenship (USA Today, Newsweek)). One practice that ending birthright citizenship might curb is “birth tourism,” in which pregnant women travel to the U.S. solely for the purpose of gaining citizenship for their newborns (USA Today).
The provision for birthright citizenship is based upon the fourteenth amendment of the United States Constitution. The Fourteenth Amendment begins as follows:
“1: 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. 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.”
Trump claims that birthright citizenship is not guaranteed by the constitution (Reuters). Others claim that it is (Time). While the above clause seems clear enough at first read, there has actually been much debate around the meaning of the term “subject to the jurisdiction thereof” (CNN, USA Today). In fact, ambiguity around the meaning and intent of the fourteenth amendment has engendered many congressional discussions and debates (1, 2, 3, 4)
According to legislative attorney Margaret Mikyung Lee (5),
Citizenship by birth in the United States was not defined in the original Constitution or in the early federal statutes. The states and courts in the United States apparently adopted the jus soli doctrine followed by traditional English common-law, under which persons born within the dominions of and with allegiance to the English sovereign are subjects of the sovereign regardless of the alienage status of their parents.
Prominent legal precedents that have influenced how courts interpret the fourteenth amendment have included Elk v. Wilkins and United States v. Wong Kim Ark. Still, many issues of U.S. citizenship remain unresolved. For example, what is the status of children born to U.S. citizens on foreign soil? The answer is not always clear (6).
It’s also unclear how intent the president is on carrying though with this Constitutional amendment amendment (or whether an amendment would be required to remove the birthright citizenship provision). It may well be that bringing the issue up at all is simply meant to rally his base. Irrespective of any constitutional changes, raising any immigration-related issue ahead of the mid-term elections (AP) provides yet another point of political division (Politico), a strategy that has consistently served Trump better than most analysts predicted.