In an interview released Tuesday October 30, President Donald Trump said he is planning to end the practice of “birthright citizenship”—the longstanding notion that those born in the United States are citizens—by way of executive order. Until the President follows through with his bluster and releases the Executive Order, the President’s interview is simply a bellow’s blow to the smoldering fire that is his campaign rhetoric.
The idea of “birthright citizenship” stems from the 14th Amendment to the United States Constitution. It reads: “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 Supreme Court has already ruled that children born to legal permanent residents are citizens as longstanding tradition holds that those born within the United States are citizens of the United States, regardless of the citizen or immigrant status of the parent. The Trump Administration’s claim is that Supreme Court has not answered the question of whether the children of immigrants in the country on temporary legal status or without legal status the 14th Amendment are citizens.
Should the President seek to unilaterally eliminate the practice of “birthright citizenship”, the move would be sure to ignite legal challenges as to whether the President has exceeded his Constitutional authority.
Former USCIS chief counsel Lynden Melden acknowledges that few immigration and constitutional scholars believe it is within the president’s power to change the constitutional notion of birthright citizenship. Josh Blackman, a law professor at the South Texas College of Law Houston, said in a Politico interview: “There are a lot of issues where legal scholars widely disagree. Birthright citizenship is not one of these areas.” Even a recent Trump appointee to the 5th Circuit Court of Appeals, Judge James C. Ho, acknowledges that any attempt by the President to change how the 14th Amendment is applied would be “unconstitutional”.
Although Trump has yet to release this executive order, it is unlikely that the move will have any immediate or long-term impact beyond providing campaign fodder for election cycles to come.
By Rahul Reddy and Ryan Wilck
Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.
Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.