President Donald Trump’s executive order to end birthright citizenship will never be implemented because it violates the 14th Amendment, say constitutional scholars.
Shortly after his inauguration Jan. 20, Trump signed 26 executive orders, delivering on promises he had made to his base while on the campaign trail. In his order titled: “Protecting the meaning and value of American citizenship,” the president claimed that the 14th Amendment has never been interpreted to extend citizenship universally to everyone born in the US.
“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,'” reasoned Trump, stating that undocumented immigrants, along with those on temporary work or student visas, were not entitled to birthright citizenship for their babies.
Cruel and Unconstitutional
The ACLU immediately filed a lawsuit in New Hampshire challenging the executive order. At a press briefing Jan. 21, Cody Wofsy, Deputy Director of the ACLU Immigrants’ Rights Project and lead attorney on the lawsuit, said: “The Trump Administration will be ripping away citizenship from babies, subjecting them to deportation. This is cruel and unconstitutional.”
Such babies would essentially be stateless, noted Wofsy, excluding them from getting health care benefits and access to education, among other benefits. It remains unclear whether parents would be able to establish citizenship from their home country for their children, he said.
Twenty two states, including California, have also filed lawsuits. Federal District Court Judge John Coughenour issued an injunction Jan. 23 in Seattle, blocking implementation of the executive order for at least 14 days and calling it unconstitutional.
Bogus Arguments
The executive order impacts babies born after Feb. 20, 2025. The order does not impact children who already have birthright citizenship.
Trump’s arguments are bogus and unconstitutional, said Tom Wolf, Director of Democracy Initiatives at the Brennan Center for Justice. In a Jan. 21 interview with Ethnic Media Services, Wolf predicted the executive order would be successfully challenged in courts. “A President cannot change the Constitution,” he stated.
The 14th Amendment was written and ratified in 1868, shortly after the end of the Civil War, which freed slaves. At that point, the children of people who were enslaved were not considered citizens. They had second-class status, different from the status enjoyed by white people, explained Wolf.
Post Slavery
“The idea for creating the 14th Amendment was, if we’re going to eradicate slavery, part of that is not just getting rid of the concept of forced labor, but getting rid of the notion that people are on different levels or different classes,” he said. Proponents of the amendment went beyond Black and White relations, said Wolf. “They made a bigger statement: if you’re born here you’re one of us. It doesn’t matter who your parents were, and it doesn’t matter what their nationality was.”
Trump has no argument that could support his attempt to end birthright citizenship, said Wolf. “Ending birthright citizenship is something that has been sort of like a totem on the right for a while. There have been any number of justifications given for it, all of which are bogus,” he said.
Supreme Court
Birthright citizenship is currently extended to the babies of anyone whom federal law can be enforced against. “Whether you are here on some sort of documented status or undocumented status, you’re still subject to the law. You pay taxes. If you break the law you can be arrested and you can be jailed,” he noted. The only exceptions are foreign diplomats and their children.
“It’s really clear on the face of the Amendment who gets citizenship. That common understanding is backed by Supreme Court precedent that is now about 130 years old,” stated Wolf.
Challenges to the executive order are likely to reach the Supreme Court. But Wolf said: “This Supreme Court is going to have an extremely difficult time ruling in Trump’s direction.” He noted that the Court previously ruled on the matter in 1898, in favor of Wong Kim Ark, establishing that children born in the US to non-citizen parents are automatically citizens.
Backlash
“The court isn’t the sole owner of what the Constitution means. Everyone has a share in that. We together determine what the Constitution means, and this is a moment where we all need to stand up and stake that claim loudly and clearly.”
“This is what the Constitution means. If you’re born here, you’re one of us. If the Supreme Court wants to come along later and say something different, then the Supreme Court’s going to get a lot of backlash and blowback,” said Wolf.
