Speaking 125 years after the US supreme court settled the issue of birthright citizenship, former president Donald Trump pledged once again to end it.
If elected back to the White House next year, Trump said in a video posted to social media on Tuesday, he will on day one sign an executive order to ensure the children of undocumented migrants “will not receive automatic US citizenship”.
Recycling ugly, anti-migrant claims, Trump also said his order would “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”.
Birthright citizenship is included in the 14th amendment to the US constitution, which was passed by the Senate in 1866 and ratified two years later. The relevant passage says: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
In 1898, in US v Wong Kim Ark, the supreme court settled an outstanding question, ruling that the child of Chinese citizens born in the US was automatically a US citizen.
Trump has repeatedly said he will remove the right regardless.
Having campaigned on the issue in 2015 he did not let it drop as president, telling Axios three years later: “It was always told to me that you needed a constitutional amendment. Guess what? You don’t.”
He added: “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
In fact, more than 30 other countries offer birthright citizenship.
Trump claimed the revocation of US birthright citizenship was “in the process” and said: “It’ll happen … with an executive order.”
It did not happen.
Experts predicted then, and predict now, that any attempt to remove birthright citizenship by executive order would face immediate challenge and swift defeat.
Writing in 2018, the Harvard law professor Laurence Tribe said the proposal would have “no chance of surviving review, even by the judges and justices the president has appointed”.
Experts have also pointed to the irony of a Republican president attacking a foundational achievement of his own party.
In 2015, the historian Eric Foner told the Washington Post the idea behind the text in the 14th amendment “was that citizenship should be extended to people regardless of accidental characteristics, such as race, national origin or the status of their parents.
“This established a national standard for citizenship. The principle was one of opportunity and inclusiveness. That’s what the Republican party stood for [in the years after the civil war]. The 14th amendment became one of the defining principles of the Republican party.”
In 2018, meanwhile, Axios quoted one expert who supported Trump’s claims.
The words “subject to the jurisdiction thereof”, the Chapman University professor said, meant only children born to citizens and green-card holders qualified for citizenship by birth.
That scholar was John Eastman, subsequently the chief legal proponent of Trump’s attempt to overturn the 2020 election.
