Not so fast. It’s more complicated than the news reports would have you believe, and it cannot be done through executive action (despite what you read).
Every new presidential administration enters office with ambitious plans for the future, setting the stage for potential shifts in federal policy, sometimes even seismic (as we might expect in the coming days and months). Congress, and even state legislatures, often find themselves racing to keep up with a new administration’s evolving priorities. While some legal changes occur through legislative action, others are the result of judicial rulings or even executive orders issued by the President.
As I’ve explained in this space before (and indeed have even advocated for in appropriate circumstances), the President possesses the authority to propose legal changes and issue, in order to quickly implement some of them, executive orders, which can have a significant impact on federal policy. However, there are constitutional and other legal limits to presidential authority. For a sitting President to enact substantial policy changes, typically Congressional support and action is necessary.
It goes without saying that the new third-rail of politics is immigration. Newly inaugurated President Trump has offered several controversial proposals with respect to U.S. immigration policy, including one now aimed at eliminating birthright citizenship (apparently only for individuals born to parents without legal status). But could such a sweeping change by executive action actually be legal?
The Constitution Establishes Birthright Citizenship Standards
Immigration policies in the United States derive from various sources, including federal statutes and executive policies. However, birthright citizenship is not just a matter of policy; it is a right enshrined in our Constitution. Specifically, the 14th Amendment guarantees that any child born on U.S. soil is automatically a citizen, regardless of the legal status of their parents.
There have been prior efforts to challenge or undermine this constitutional guarantee, including cases that have reached the Supreme Court. Despite these attempts, the 14th Amendment’s protections have remained solid.
Under the Constitution, the legal status of a child’s parents, whether they are undocumented immigrants, lawful visa holders, or even awaiting removal / deportation, is irrelevant to the child’s citizenship. Children born in the U.S. to undocumented parents are citizens by birth and may, in the future (under some circumstances), even assist their own undocumented parents obtain legal status or green cards.
Can Birthright Citizenship Be Eliminated?
First and foremost, an executive order alone cannot override constitutional protections like those established by the 14th Amendment. To eliminate birthright citizenship, a constitutional amendment would be required, a process that we know from grade school (who remembers Schoolhouse Rock?) that demands overwhelming support in Congress and among state legislatures. Amending the Constitution is a complex and lengthy process, making such a change highly unlikely in the short term.
What This Means for Families
For those concerned about the future of birthright citizenship, I don’t anticipate immediate changes, certainly not without a lot of litigation. Even though the President has proposed it, it will no doubt be swiftly challenged. Candidly, there are other things President Trump and his new administration can do in the short-term that undocumented (and other) immigrants should be more concerned with. Any effort to alter the fundamental right of birthright citizenship, even with a Republican-controlled Congress, would require years of legislative and judicial proceedings, as well as significant public debate and legal challenges.
Nevertheless, staying informed about all of this, and understanding potential changes to federal policy, is essential. Awareness and preparation can help immigrants and their families protect themselves and their loved ones in an ever-changing legal landscape.