President Trump Can't Overturn Birth Citizenship, Say Legal Scholars

This past week, President Trump voiced his commitment to ending birthright citizenship through an executive order. In an interview with Axios, he said, "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" (The Washington Post reports that, in fact, 33 nations grant citizenship to all babies born within its borders—including Canada and Mexico).

Legal experts on both sides of the aisle have taken issue with the president's remarks, including Rep. Paul Ryan, the highest-ranking Republican in the House. There are a number of legal problems with using an executive order to overturn a Constitutional right, but most criticisms have focused on the 14th Amendment.

The amendment, first passed during the Reconstruction era, says the following:

"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."

Does the amendment apply to children of non-citizen parents? The Supreme Court answered that question in 1898 in a case called Wong Kim Ark. The case revolved around the citizenship of a child born to Chinese immigrants in San Francisco. At the time, all Chinese immigrants were barred from ever becoming citizens under the Chinese Exclusion Act. However, the Supreme Court ruled that the child was a citizen—after all, he was born here.

What Happens to the Children of Undocumented Immigrants?

Now the question Trump is raising is whether the amendment applies to the children of unauthorized non-citizens, a question that the 1898 case couldn't have answered—the concept of "unauthorized immigrants" didn't exist then. However, a Supreme Court case answered that question in 1982: Plyler v. Doe, a case which noted that "no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

Former counsel for the USCIS put it this way: if native-born Americans with undocumented parents can be charged with breaking U.S. laws, then they are unquestionably under the jurisdiction of the United States. They are, by law and in fact, citizens.

Immigration law professor Stephen Yale-Loehr, in an op-ed penned for the Daily News, poses this question: if these children are not citizens of the United States, then to whom do they belong? Ireland, who recently rolled back birthright citizenship, is facing this very issue. A 9-year-old boy born to non-citizen parents is facing deportation from the only home he's ever known and may be considered "stateless."

The New Jersey immigration attorneys at our firm continue to fight for the rights of immigrants of all statuses—undocumented, permanent resident, and everywhere between. If you have questions about your status or the status of your children, speak with our attorneys today.

Get a free review of your legal options as soon as possible—call (800) 909-8129 or contact us online today.