Former President Trump’s call this week for an end to birthright citizenship for the children of those in the country illegally echos a promise he has made multiple times before but did not enact amid a firestorm of controversy.
Trump, who is running for the Republican presidential nomination in 2024, said he would sign an executive order “on day one” that will instruct federal agents that the “correct interpretation of the law” does not grant citizenship to the children of illegal immigrants regardless of their birthplace.
“Joe Biden has launched an illegal foreign invasion of our country, allowing a record number of illegal aliens to storm across our borders,” Trump said in a video posted on Twitter. “Even though these millions of illegal border crossers have entered the country unlawfully, all of their future children will become automatic U.S. citizens. Can you imagine?
“They’ll be eligible for welfare, taxpayer-funded health care, the right to vote, chain migration and countless other government benefits, many of which will also profit the illegal alien parents. This policy is a reward for breaking the laws of the United States and is obviously a magnet, helping draw a flood of illegals across our borders.”
While birthright citizenship grants citizenship to children of legal immigrants, the debate over automatic citizenship has primarily focused on those in the country illegally. Those who call for its abolition or restriction argue it incentivizes foreign nationals to cross into the U.S. illegally and have a child who then gets citizenship.
Trump first made the ambitious promise during his 2016 campaign. His campaign website promised to “end birthright citizenship.”
“By a 2:1 margin, voters say it’s the wrong policy, including [Former Senate Majority Leader] Harry Reid who said ‘no sane country’ would give automatic citizenship to the children of illegal immigrants,” the website said.
In 2018, Trump raised the idea again in an interview with Axios.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump said. “It’s ridiculous. It’s ridiculous. And it has to end.”
In 2019, he said his administration was looking at the question “very seriously.”
“Birthright citizenship, where you have a baby on our land — you walk over the border, have a baby, congratulations, the baby’s now a U.S. citizen,” Trump said. “We’re looking at it very, very seriously … It’s, frankly, ridiculous.”
The debate comes as the U.S. has been facing a migrant crisis now into its third year with record numbers of migrants at the southern border. Immigration, and what to do with those in the country illegally, is likely to be a top topic for the 2024 presidential campaign.
The 14th Amendment 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.”
Some legal experts, Democrats and some conservatives have dismissed the idea that such a constitutional change can be made via executive order. Some have argued that an act of Congress would be more likely to stand a legal challenge. Any such move would almost certainly face an immediate court challenge from a number of immigration activists and civil rights organizations.
Former House Speaker Paul Ryan said in 2018 that Trump “obviously” could not make that change via executive order.
“I’m a believer in following the plain text of the Constitution, and I think, in this case, the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process,” he said in an interview, according to The New York Times.
However, Trump advisers and some conservative legal scholars have previously argued that the idea of giving birthright citizenship to children of illegal immigrants is based on a misreading of the amendment.
In an op-ed published in 2018, Heritage Foundation senior legal fellow Hans A. von Spakovsky said critics of Trump’s plans “conveniently ignored or misinterpreted” the 14th Amendment’s requirement that illegal immigrant children be “subject to” the jurisdiction of the United States.
“U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase ‘subject to the jurisdiction thereof.’ The federal government has erroneously interpreted that statute to provide passports and other benefits to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being ‘subject to the jurisdiction’ of the U.S.,” he said.
“As a result, the President of the United States has the authority to direct federal agencies to act in accordance with the original meaning of the 14th Amendment and to issue passports and other government documents and benefits only to those individuals whose status as U.S. citizens meets this requirement.”
Other conservatives have been dismissive of Trump’s call, noting the prior promises to make such a move.
“Trump Once Again Promises to Revoke Birthright Citizenship to Combat Border Crisis…and again (2018), and again (2019), and again… today… Whatever…,” Former acting Deputy DHS Secretary Ken Cuccinelli, who served during the Trump administration, tweeted.
Fox News’ Anders Hagstrom contributed to this report.