As he promised during his campaign, President Donald Trump began taking action against immigration from his first day in office. Among them are the declaration of a national emergency at the United States-Mexico border, suspending the United States Refugee Admissions Program, and ending birthright citizenship.
Although the latter is one of the most controversial actions because it is unconstitutional, Trump's order instructs federal agencies not to recognize children born on U.S. soil if at least one parent is not a U.S. citizen or green card holder.
This order will take effect within 30 days. However, the order has already received its first lawsuit, and many more are expected to be filed in the coming days.
The lawsuit, filed in New Hampshire, was signed by 26 attorneys who argue that the order violates the 14th Amendment of the Constitution.
The attorneys general of 18 states who sued President Trump this Tuesday to block the executive order also joined.
What does the 14th Amendment say?
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.”
Historically, the Supreme Court has interpreted this provision to include the U.S.-born children of non-citizens, as in the case United States v. Wong Kim Ark (1898), where it was stated that a child born in San Francisco to Chinese parents was a US citizen.
The debate on birthright citizenship in the U.S.
Birthright citizenship, guaranteed by the 14th Amendment of the Constitution, grants citizenship to anyone born on U.S. soil, regardless of their parents“ immigration status. This principle, established after the Civil War in 1868, has been a pillar of equality and justice in the country. However, former President Donald Trump has proposed eliminating this guarantee through an executive order, claiming that the phrase ”subject to the jurisdiction" of the U.S. leaves room for legal reinterpretation.
What can Trump do according to the law?
A president does not have unilateral authority to change rights guaranteed by the Constitution. That is why the proposed executive order faces several legal hurdles:
- Clear legal precedents: Cases like Wong Kim Ark and Plyler v. Doe (1982) they have maintained that the 14th Amendment protects all persons born in the U.S.
- Limitations of an executive order: Executive orders cannot reinterpret federal laws or the Constitution.
- Immediate demands: The American Civil Liberties Union (ACLU) has already filed a lawsuit, arguing that the order exceeds presidential authority and violates the Constitution.
What is required to amend the Constitution?
Changing the 14th Amendment would require an extremely complex process:
- Approval in Congress: Support from two-thirds of both chambers (the Senate and the House of Representatives) is required.
- State ratification: At least 38 states must ratify the amendment.
- Constitutional Convention: Alternatively, 34 states could call for a constitutional convention, something that has never happened in U.S. history.
The amendment process is intentionally difficult to protect fundamental rights.
Political and social impact
The attempt to eliminate birthright citizenship has generated intense political polarization in the United States. Proponents of this proposal, mostly Republicans, argue that eliminating this right could deter illegal immigration and alleviate the burden on social services.
However, Democrats and civil rights organizations argue that this approach unfairly criminalizes immigrants and undermines fundamental principles of equality and justice.
It could also create a hereditary class of stateless people: children born in the United States who have no legal rights or protection in any country. This not only contradicts American values of inclusion and opportunity, but could also perpetuate cycles of poverty and social exclusion.
As a result, immigrant communities would face greater uncertainty, and the fear of deportation could deter people from seeking education, health care, or even reporting abuse.
An almost impossible challenge
Although Trump has promised to eliminate birthright citizenship, legal, historical, and political obstacles make his proposal practically unviable. Rights guaranteed by the Constitution are designed to resist changes driven by political interests, ensuring stability and justice for all persons born in the U.S.
Citizenship by birth is not only a constitutional right, but also a symbol of the nation's fundamental values.
If you have any questions, consult with an immigration lawyer for specialized advice.
Call us at 202-709-6439 o click here for a consultation directly with attorney Lauren Eagan.
This information is for educational purposes only and does not constitute legal advice.