Name: Inside Trump’s Strategy to End Birthright Citizenship | WSJ
Uploaded: 2025-02-04T08:26:49.000Z
Duration: 6 min 32 s
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President Trump's executive order to end birthright citizenship has kicked off an unprecedented legal battle over immigration policy.

If we lose, it means that the Constitution doesn't matter.

Most legal scholars say the meaning of the 14th Amendment is very clear, that people born in the U.S. are citizens, regardless of the citizenship of their parents.

But that doesn't mean the Trump administration is fighting a losing battle.

We'll break down the legal case surrounding birthright citizenship and the consequences of Trump's executive action.

Birthright citizenship was first established in 1868 by the 14th Amendment to recognize Black Americans as citizens after the Civil War.

This phrase was included in the Citizenship Clause to exclude people who were essentially immune from local law and therefore were not subject to the jurisdiction of the U.S.

Those three groups were children born to foreign diplomats who had diplomatic immunity, children born to Native Americans living on tribal lands because they were immune from state and local laws, and children born to an occupying army that had invaded the country.

This particular phrase has become the focal point of the Trump administration's legal case.

Their argument is that children born to immigrants living in the U.S. legally should also be excluded from birthright citizenship.

If you're not here permanently, if you're not subject to the jurisdiction of the United States and don't plan to be, why would we make those people's children American citizens permanently?

For an administration that is taking a very hard line on undocumented immigrants and saying we're going to remove millions of people, to turn around and say that their children are not subject to United States jurisdiction is entirely contradictory.

New Jersey Attorney General Matt Plattken is leading one of several lawsuits filed against the Trump administration's executive order.

They're tying themselves up in knots because they know they don't have a good legal argument.

Advocates of birthright citizenship often cite an 1898 Supreme Court ruling that said a man born in the U.S. to Chinese immigrants was entitled to citizenship, despite his parents not being citizens.

But a few legal scholars argue that because Wong Kim Ark's parents were legal residents of the U.S., the decision didn't resolve whether the children of undocumented immigrants get citizenship.

The quote, illegal immigrant, was a concept that didn't emerge really until the early 20th century, in part because of immigration enforcement efforts at that time.

So it wasn't a term that was openly discussed in Wong Kim Ark.

In his executive order, Trump declared that children won't get citizenship at birth unless at least one of their parents is a citizen or legal permanent resident.

My policy will choke off a major incentive for continued illegal immigration, deter more migrants from coming, and encourage many of the aliens Joe Biden has unlawfully let into our country to go back to their home countries.

He says the order is also meant to deter what Trump allies call birth tourism, which is when pregnant women enter the U.S. specifically to give birth so their children can have citizenship.

If the executive order goes into effect, the federal government will stop issuing citizenship-affirming documents to children of non-citizens.

Not just the kids born to those who are here without legal authorization, but also kids born to, say, a couple living here on student visas, or a mother who's here on an H-1B visa working for a tech company.

These are not children who have ties to any other country.

So what it would do is create this permanent underclass of people who are here that aren't entitled to the same health care or educational rights necessarily as American-born children.

If the executive order takes effect, local governments also stand to lose funding for federal benefit programs, where eligibility is based on Social Security numbers.

The president doesn't have the right to change the Constitution by executive order.

To end birthright citizenship, Trump would need either an amendment to the Constitution, which would require two-thirds of both the House and Senate and three-quarters of the states to agree, or for the Supreme Court to endorse his interpretation of the 14th Amendment, which is what the administration is banking on.

Even the Supreme Court is not going to find that the 14th Amendment doesn't say what it does.

In Seattle, a federal judge has already issued a temporary restraining order.

Major blow to the new Trump administration.

Federal judge temporarily blocks President Trump's executive order ending birthright citizenship, calling it, quote, blatantly unconstitutional.

So we can expect that within the next two weeks, he's very likely to issue a preliminary injunction.

Once there's a preliminary injunction, the federal government can ask the higher federal courts to block the lower federal court's order.

They put it before a certain judge in Seattle, I guess, right?

And there's no surprises with that judge.

If they lose before the intermediate appellate courts, then they could seek emergency relief from the Supreme Court itself.

That's something the Trump administration did a lot the first time around.

I expect we're going to see the same approach this time.

We are prepared to fight this all the way to the Supreme Court if we have to, because President Trump believes that this is a necessary step to secure our nation's borders and protect our homeland.

If the Supreme Court blocks the preliminary injunction, the executive order would be allowed to move forward while it's being litigated.

There were a number of Trump administration policies adopted during President Trump's first term that by the time we got to the end of President Trump's first term, they were still being litigated, although they were being enforced.

That's a possibility here that doesn't even require the Trump administration to win before the Supreme Court.

Most legal experts say the executive order is unlikely to take effect because it violates both the Constitution and laws passed by Congress.

And so you can imagine another pathway by which the administration might try to change citizenship law.

I might think that this executive order is the first stepping stone towards persuading Republicans in Congress to get on board with a bill.

With the Birthright Citizenship Act of 2025, we can solidify these reforms into lasting law.

 It's a big deal legally with respect to birthright citizenship, but it's a bigger deal with respect to whether Americans' belief in the rule of law will be upheld.