President-elect Donald J. Trump has revived talk of abolishing birthright citizenship — the guarantee, rooted in common law and enshrined in the Constitution for more than 150 years, that anyone born in the United States is automatically an American citizen.
“We’re going to have to get it changed,” Mr. Trump said in a televised interview on Sunday. “We’ll maybe have to go back to the people. But we have to end it.”
Mr. Trump was vague in the interview about how he intended to proceed once he takes office. He raised the issue during his first term in office but did not take significant action then.
Here is what you need to know about birthright citizenship and whether the president could put an end to it.
Does the Constitution guarantee birthright citizenship?
Yes. The 14th Amendment says, “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 part about jurisdiction creates a very narrow exception that today essentially applies only to children of accredited foreign diplomats. Other than that, the citizenship or immigration status of a person’s parents has not been held to have any effect on this right.
(The term “birthright citizenship” can also refer to another way a person can be born an American citizen: by having a citizen parent. This source of citizenship, created by federal law rather than directly by the Constitution, has not generally figured in the debate over immigration policy but comes up sometimes in presidential elections.)
Can the president abolish it by himself?
No. The president cannot amend the Constitution, and an executive order trying to end or restrict the right would almost certainly be challenged in court as a violation of the 14th Amendment.
Some of Mr. Trump’s allies have suggested that the jurisdiction language in the amendment could be construed to exclude children of undocumented immigrants, the main targets of demands for ending birthright citizenship. Until now, the overwhelming scholarly and legal consensus has been that such an argument would have little or no chance of prevailing in court.
Some legal scholars think that such arguments will continue to be nonstarters in the courts. But the idea that the Supreme Court may at some point find the arguments for restricting birthright citizenship persuasive is “no longer laughable,” said Amanda Frost, a law professor at the University of Virginia and an expert on immigration and citizenship law. Limiting birthright citizenship was the consensus position among Republican presidential candidates in the 2024 election, and at least one federal judge has indicated a willingness to consider it.
“I don’t think it’s inconceivable, which is what I would have said in 2019,” Professor Frost said. “The ground is shifting.”
Do other countries have the same policy?
Yes. Thirty-three countries and two territories — nearly all in the Western Hemisphere, including Mexico and Canada — have unrestricted birthright citizenship similar to that of the United States, according to a tally by the World Population Review.
Another 40 have restricted versions of the right that may apply, for example, only to children of legal residents or of parents born in the country, or that exclude refugees.
Several countries that, like the United States, had traditions of universal birthright citizenship rooted in English common law — including Britain, Ireland, Australia, New Zealand and India — have restricted or abolished the right in recent decades.
What do critics mean by ‘birth tourism,’ ‘chain migration’ and ‘anchor babies’?
Those terms, used by anti-immigration hard-liners and other critics of birthright citizenship, tend to conflate two separate consequences of the policy.
Each year, thousands of pregnant women from other countries enter the United States on a valid visa, give birth to children who automatically gain American citizenship and then take the babies back home or to a third country. The practice, sometimes called “birth tourism,” is legal as long as the mother obtains her visa truthfully and complies with its terms.
Mr. Trump and his supporters, however, tend to talk about expectant mothers who enter the country illegally to give birth to what they derisively call “anchor babies,” who would give the family access to public benefits and a foothold toward legal residence.
The Migration Policy Institute estimates that, as of 2019, about 4.7 million American-born children under 18 were living with a parent who was undocumented — about 7 percent of all children in the United States. But studies have found that the vast majority of such children did not cross the border in utero. The Pew Research Center estimated in 2022 that about five out of six U.S. children of unauthorized immigrants were born two years or more after their parents entered the United States.
Whether reared in the United States or abroad, once American children of noncitizen parents reach the age of 21, they can sponsor family members for legal permanent residency, just as any other American citizen can — a practice derided by critics as “chain migration.” Sponsorship by relatives has featured prominently in the stories of tens of millions of immigrants to the United States over the past century.
The post Can Trump End Birthright Citizenship? Not Easily. appeared first on New York Times.
