President-elect Trump, Democratic lawmakers and the Supreme Court are on a collision course over restricting birthright citizenship, which Trump has identified as a top priority for his incoming administration.
Republican lawmakers on Capitol Hill say the 14th Amendment’s language, which grants all people born in the United States citizenship, is being exploited in a way the amendment’s framers never anticipated.
They believe Trump has the authority to take action to tighten the interpretation of the 14th Amendment to exclude the children of foreign tourists, students and other classes from automatically receiving citizenship if born on U.S. territory.
And they say the conservative-leaning Supreme Court could rule that classes of foreigners on U.S. soil are not necessarily subject to the jurisdiction of the United States and therefore their children, if born in this country, are not entitled to citizenship.
“I’ve always thought that it was a bad law — to where anybody that was born here was an automatic citizen. I’d be all for making that change,” Sen. Tommy Tuberville (R-Ala.) said of Trump’s proposal to curtain birthright citizenship.
Trump floated the idea unprompted during a recent interview with NBC’s “Meet the Press.”
The president-elect told NBC’s Kristen Welker that he wants to end birthright citizenship by executive action, an idea that is winning applause from Republicans in Congress.
“We have to end it,” Trump said, dismissing the long-observed right as “ridiculous.”
Senate Republicans think Trump will act on his pledge and predict the matter will eventually be decided by the Supreme Court, which conservatives control with a 6-3 majority.
“I’m going to take my cues on President Trump because nothing’s going to happen without his support,” said Sen. John Cornyn (R-Texas).
Cornyn said it’s “clear” that the 14th Amendment and birthright citizenship are "being exploited."
“That will probably be decided ultimately by the Supreme Court of the United States,” he said. “I would hope we would deal with some of the most egregious abuses.”
The 14th Amendment, which states adopted in 1868 in the aftermath of the Civil War, states that “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 language has traditionally been interpreted as giving any person born in the United States, even to a foreign citizen visiting or who has crossed the border illegally, citizenship.
But conservatives argue that it’s time to reinterpret the language to exclude people who visit the United States explicitly to have children on U.S. soil to gain the advantages of dual citizenship.
And, more broadly, they’re exploring the idea of excluding the children of any visitors who are not legal permanent residents from gaining automatic citizenship by pushing a new reading of the clause “and subject to the jurisdiction thereof.”
Those seeking a new and more restrictive interpretation of the language argue that Native Americans who were born on reservations during the time when the amendment was ratified were not subject to the jurisdiction of the United States and therefore not due the full rights of citizenship even though they were born within the country’s boundaries.
“The president and the Congress have the authority to interpret the Constitution just as the Supreme Court does. It’s just that the Supreme Court is the one that gets the last word,” said Mark Krikorian, executive director of the Center for Immigration Studies, a group that advocates for lower levels of immigration.
Krikorian said the president can interpret the 14th Amendment narrowly not to issue passports or Social Security numbers to newborns who are not born of U.S. citizens or green card holders.
“Then it will get to the Supreme Court and we’ll see one way or another” how the issue is decided, he said.
Krikorian said the framers and lawmakers who drafted and voted on the 14th Amendment in Congress and state legislatures “understood that to mean that children born to Indians living on reservations were not getting citizenship automatically, because [their parents] didn’t have citizenship until 1928.”
“The whole point of the amendment, what everybody who voted on it intended it to do, was to prevent the Southern states after the [federal Union] army withdrew from stripping the newly freed slaves from their citizenship,” he said.
But he argued that the framers never envisioned that people would be visiting the United States from around the world to give birth on U.S. soil explicitly to gain the benefits of U.S. citizenship — or for foreign students or foreign seasonal workers to gain a permanent foothold in the United States by giving birth within its borders.
Under this “originalist” perspective, advocates for restricting birthright citizenship hope that the Supreme Court may agree with a potential Trump administration executive order that only residents who already have citizenship or legal permanent residency are fully “subject to the jurisdiction of the United States” and therefore their domestically born children deserve citizenship.
Sen. Tim Kaine (D-Va.) is one of a growing number of Democrats who fear that birthright citizenship could be threatened once Trump takes office, given the Supreme Court’s conservative bent.
“He keeps coming back to it. What was notable to me about [the] interview over the weekend is — it wasn’t that he said what he said, because he’s said it before — it’s that he said it unprompted,” Kaine said of Trump’s call for ending birthright citizenship during last week’s interview with NBC, one of his first sit-down interviews since being elected to a second term.
“He really got asked a question about mass deportation and building the wall but then he put the birthright citizenship in the middle of the answer,” Kaine said.
“I think it would be foolish for us not to take it as a serious threat,” he said.
Lawmakers say Trump would likely try to curtail birthright citizenship through executive action since he would have virtually no chance of building enough support to amend the Constitution over the next four years.
Passing a constitutional amendment requires mustering two-thirds support in each chamber of Congress and securing ratification across three-quarters of the states. Democrats would staunchly oppose any effort to limit birthright citizenship, lawmakers in both parties say.
Kaine, a former federal appellate litigator, however, argued that the legal theory behind reinterpreting the “subject to the jurisdiction of” clause of the 14th Amendment is weak.
He said such a novel interpretation of the law would undermine how criminal laws apply to unauthorized immigrants and other visitors across the country.
“Then every person who gets arrested is like, ‘I can’t be convicted of a crime, I’m not subject to the jurisdiction of the United States,’” he said.
Kaine argued that the concept of not being subject to the jurisdiction of the United States has only applied to Native Americans with recognized sovereignty and foreign diplomats with internationally recognized legal immunity.
“If the framers of the 14th Amendment had said ‘any person born in the United States whose parents were subject to the jurisdiction of the United States’ then you might have an argument on undocumenteds, but they didn’t do it that way,” Kaine said.
But Republican lawmakers argue that something needs to be done after an estimated 2.4 million migrants entered the country each year of Biden’s four-year term — representing the biggest immigration surge in the nation’s history.
Sen. Mike Rounds (R-S.D.) said Trump is “more than welcome” to address birthright citizenship.
“It has worked in the past but I also know that it’s caused real problems here because it’s incentivized people to come in to have a child, simply to have a way in for their children. But it creates real problems for our system,” he said.
The Pew Research Center reported in July that at least 1.3 million of U.S.-born adults are children of unauthorized immigrants.
