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Trump wants to limit birthright citizenship through executive action.
President-elect Donald Trump’s plan to use executive authority to curb birthright citizenship for the U.S.-born children of undocumented people is sure to generate a tsunami of legal challenges, but immigrant communities will still experience harm even if the attempt fails.
During a recent interview with NBC journalist Kristin Welker, Trump said that if he can, his administration will try to restrict the longstanding, constitutionally guaranteed right of children born on U.S. soil to have American citizenship.
“We’re going to end it because it’s ridiculous,” Trump said.
During his re-election campaign, Trump vowed to end automatic citizenship for the children of undocumented immigrants on his first day in office through an executive order that would direct federal agencies to not issue passports, Social Security numbers and certain welfare benefits. He would also mandate that at least one parent be a lawful permanent resident or U.S. citizen in order for a child born in the U.S. to automatically become citizens.
Such a policy would have extreme ramifications in places like Florida, where over half a million residents are undocumented. About 280,000 children with U.S. citizenship in the state also live with at least one undocumented family member, in many cases a parent.
The Wall Street Journal recently reported that the president-elect’s transition team is drafting executive orders to limit birthright citizenship. Lawyers who spoke to the Miami Herald said that it would be unlawful for Trump to limit birthright citizenship through executive order. They emphasized that legal scholars largely agree that U.S. born children of undocumented children are granted citizenship through the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Aaron Reichlin-Melnick, an immigration attorney and senior fellow at the American Immigration Council, said Trump was trying to use an executive order to “effectively rewrite the Constitution.”
“They are hoping they can convince a judge to overturn over 125 years of precedent and ignore the plain text of the 14th Amendment,” he said. “I don’t think any judge will bite on that. They are very aware that the law is not on their side right now.”
But attorneys also said that despite the legal challenges Trump will face, the efforts to end birthright citizenship should be taken seriously and could reach the court system.
“This is something that should worry every single American, because this is someone who wants to shred the idea of what is U.S. citizenship,” Reichlin-Melnick said.
Angel Leal, a Miami immigration attorney, said that legal scholars broadly agree that birthright citizenship is not related to a parent’s immigration status. He said the Trump administration will likely argue that undocumented immigrants are not subject to U.S. jurisdiction — the language of the 14th Amendment — and thus neither are their children. Leal said that interpretation is incorrect because undocumented people still abide by U.S. law, such as by paying taxes and obeying traffic laws, and so they fall under American jurisdiction.
But lawyers warned that the longstanding precedent could still be in jeopardy. Someone getting their passport or a benefit denied could trigger a case that might make it all the way up to the Supreme Court.
“Just because it’s precedent doesn’t mean they can’t reverse it,” Leal said. The nationm’s highest court has overturned longstanding precedent in recent years, including the decades-old case that created federal limitations around state regulations on abortion.
During the hour-long NBC interview, Trump also said “there was no choice” but to carry out mass deportations of the country’s over 10 million undocumented immigrants, a cornerstone promise of his campaign. Trump told Welker that he would first focus on immigrants with criminal histories. He also suggested that to avoid family separations, the U.S.-born children of undocumented people could also go to their parents’ home countries.
“I don’t want to be breaking up families, so the only way you don’t break up the family is you keep them together and you send them all back,” said Trump.
His comments echo those of Trump’s appointed “border czar,” Tom Homan, who said in a CBS News interview that “families could be deported together.”
‘Not be a fast fight’
Changing the Constitution requires the approval of two-thirds of both chambers of Congress or two-thirds of states to call for a convention, a high threshold to meet. But some advocates and lawyers said that Congress could try to act on birthright citizenship.
On Sunday, Utah Republican Sen. Mike Lee wrote on X that “nothing in the 14th Amendment limits Congress’s ability to enact legislation limiting birthright citizenship.” He referred to a 1993 bill from the late Democratic Sen. Harry Reid that barred babies born to mothers who are not citizens or permanent residents from receiving citizenship. Legal experts told the Herald that such legislation could be deemed unconstitutional by the courts.
Lawyers emphasized that the U.S. children of undocumented parents should prepare for any executive actions that could preclude them from receiving important documents that serve as proof of citizenship. They recommended that they renew passports, make additional copies of birth certificates and Social Security cards, and petition for green cards on their parent’s behalf if they have not done so.
“The executive orders are going to be issued, and once they are issued, this is going to require a legal challenge. There might not be a fast resolution and people need to be aware of that,” said Leal. “The consensus seems to be that the courts will strike this, but it will not be a fast fight.”
(Miami herald)