In an interview with Axios, President Donald Trump said that he would unilaterally end birthright citizenship through an executive order. The remarks will likely rally his base ahead of a contentious midterm election, but it’s unlikely that the President can end birthright unilaterally. He’d need to amend the Constitution in order to do so.
Why? Birthright is enshrined in the 14th amendment of the Constitution, which states: “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 “jurisdiction thereof” refers to people who have diplomatic immunity, as technically they remain outside of the jurisdiction of the United States government. Illegal immigrants are still under jurisdiction.
Changing the Constitution would require the support of an already divided Congress, or implementing a constitutional convention. This would require the support of at least two-thirds of state legislatures. Currently, Republicans control 63 percent of state legislatures, although they may lose some in a few days.
The Constitution supersedes executive orders, so if President Trump did pass an executive order revoking birthright, it would almost certainly be immediately suspended by a federal judge. This would set up a constitutional battle. Assuredly, President Trump is well aware of this, and it’s likely exactly what he wants.
By setting up a constitutional battle, President Trump will force a showdown between those who support birthright and those who don’t. Current data is hard to find, but a poll back in 2010 found Americans firmly split on the issue. Forty-nine percent wanted to keep birthright as it is, while 47 percent wanted it changed.
Support for changing birthright was higher among Republicans at 54 percent. Meanwhile, 59 percent of Democrats said it should remain unchanged. Given increased partisanship among voters over the past several years, it wouldn’t be surprising if more Republicans support change now, while more Democrats want birthright to stay the same.
Why Trump Might Exercise Executive Order Anyway
It seems likely then that Trump could increase already strong support and turnout among his base by forcing a constitutional showdown over birthright. The issue will force more people to choose their side, and to choose it more firmly. One could argue that Trump used such a strategy during his presidential race and that it’s still garnering him strong support among his base.
Further, Trump may be able to use immigration to siphon off some Democratic supporters. Those Democrats who otherwise disagree with Trump’s policies but support his hard line on both documented and undocumented immigration may shift their vote to the President.
Is Birthright Unique to the United States?
“We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” declared President Trump.
The above claim isn’t quite correct. The United States isn’t the only country to offer birthright citizenship. However, immediate birthright based solely on geography (meaning born on the soil), a concept called unrestricted Jus soli, is almost exclusive to the “New World,” or North and South America. The vast majority of the Americas offer birthright citizenship. Most countries in Europe, Asia, Africa, and elsewhere do not offer unrestricted jus soli.
The Americas’ support of birthright shouldn’t be too surprising given historical immigration patterns. From the 16th to early 20th century, the Americas saw mass migration. Many non-citizens were immigrating (usually legally as it was comparatively easy to do so) and having children in the Americas. Extending citizenship to their children added stability for immigrant families.
This sets up yet another complicated showdown. Supporters of birthright could claim that it’s part of our historical heritage (that’s what I would argue, to be honest). Critics could claim that the times and circumstances have changed and that the United States should get with the times and support citizenship policies in line with most countries outside of the Americas.
