The Trump administration issued an executive order Jan. 20 aimed at ending birthright citizenship in the United States.
Birthright citizenship, a constitutional right guaranteed by the 14th Amendment, is the principle that anyone born on U.S. soil automatically becomes a citizen, regardless of the citizenship of their parents. This protection is rooted in the aftermath of the Civil War in an effort to grant legal and civil rights to Black Americans.
The executive order directs federal agencies to stop issuing citizenship documents to children born to undocumented parents or to parents in the country on temporary visas. A federal judge in Seattle issued a temporary halt to the order, calling it unconstitutional. The Trump administration has vowed to appeal, raising questions about the future of birthright citizenship in America.
To answer some of those questions, Fordham Now consulted Jennifer Gordon, an immigration law expert and professor at Fordham Law School. Gordon shared her insights on the likely legal road ahead for the executive order.
Fordham Now: In your opinion, how likely is the Trump administration to successfully end birthright citizenship?
Jennifer Gordon: It’s unlikely the administration will succeed. The 14th Amendment of the Constitution established birthright citizenship, and Supreme Court cases interpreting the law have upheld the right for over 125 years. The federal judge who heard the case that was brought last week to challenge the Trump action declared the president’s order “blatantly unconstitutional,” saying “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.”
FN: The order argued that children of undocumented immigrants are not “subject to the jurisdiction of U.S. laws” and therefore the 14th Amendment doesn’t apply to them. Does that hold water legally?
JG: That interpretation of the 14th Amendment was first rejected by the Supreme Court in the Kim Wong Ark case 125 years ago, and every time the argument has been made before the Supreme Court since, it has failed.
In practical terms, federal, state, and local governments recognize undocumented immigrants as “subject to the jurisdiction” of U.S. laws in all areas, holding them to the obligation to comply with all civil statutes and all criminal ones, illustrating that they do in fact fall within the 14th Amendment’s birthright citizenship protection. The only people who fall outside the 14th Amendment in this regard are the few individuals who truly are not subject to U.S. jurisdiction, for example, high-ranking diplomats, who cannot even be held accountable for traffic tickets.
FN: Some critics of Trump’s order have said the only way to end birthright citizenship is through a constitutional amendment. Do you agree, and how likely do you think that is?
JG: The Supreme Court has the power to end birthright citizenship by overruling its longstanding interpretation of the 14th Amendment, although it seems unlikely that it would do so.
The only other way to change birthright citizenship is through a constitutional amendment. That would require that the proposed amendment pass Congress by a two-thirds vote (not the ordinary simple majority), and then be approved by three-quarters of the states, or 38 out of 50. This cumbersome process rarely ends in the passage of an amendment; no amendment has passed since 1992.
