President-elect Donald Trump revealed in an interview over the weekend that he plans on ending birthright citizenship in the U.S., a right protected by the 14th Amendment of the Constitution. But despite his confidence about implementing the measure on his first day in office, an expert says he will face tough legal hurdles to do so.
The President-elect has been vocal about his opposition to birthright citizenship, falsely noting that the U.S. is the only country that offers it despite other nations like Brazil and Canada also having that right enshrined.
"We're going to have to get it changed. We'll maybe have to go back to the people. But we have to end it," Trump said in an interview with NBC's Kristen Welker on Sunday's "Meet the Press."
Birthright citizenship is protected under the 14th Amendment of the U.S. Constitution, which states that "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."
The current accepted interpretation is that a child born in the U.S. is automatically a citizen, no matter the parents' legal status. This type of citizenship does not change a parent's immigration status. Instead, U.S. law requires those children to wait until they're 21 to petition for their parents to become citizens, with very few exceptions.
It remains unclear how, or if, he will be able to achieve this goal. When asked about it on NBC, he claimed it could be done through executive action.
"I was going to do it through executive action but then we had to fix Covid first, to be honest with you," Trump said. "We have to end it. It's ridiculous."
But regardless of his assertions, ending a right enshrined in the U.S. Constitution is much more difficult than he is communicating.
Because birthright citizenship is protected in the Constitution, two-thirds of both House and Senate would need to support a change. And while Republicans do control both chambers of Congress, they do not hold nowhere near a supermajority to ratify the amendment. At the same time, 38 states need to ratify the change, another obstacle increasingly difficult to overcome in a highly-divided environment as the one the U.S. is facing today.
"It's therefore quite challenging given how polarized the political climate is right now. Both of those would be extremely challenging hurdles to get over," Ian Farrell, Associate Professor at the University of Denver Sturm College of Law told 9News.
However, Farrell said, he could technically still use executive action to end birthright citizenship. But that would be a "nightmare scenario."
"Another possibility that is worrisome, is what if, Trump when he is president again, passes an executive action that's challenged in the courts. The courts, including the Supreme Court, block the law. What if he says, 'You're wrong, I'm right, I'm going to do it anyway.''
Of course, Trump could also make policies that intentionally lead to lawsuits to get the issue before a conservative Supreme Court, according to The Washington Post.
Some of Trump's advisers, including immigration hard-liner Stephen Miller, have said they want to stop issuing passports and Social Security numbers to people born in the U.S. to noncitizens. Since that appears to be unconstitutional under the 14th Amendment, such a move could set in motion a battle in the courts over whether there's another way to interpret birthright citizenship.
If that happens, the Trump administration would have to give a compelling argument for why the text in the Constitution doesn't mean what it says. The last time the court weighed in on birthright citizenship was in the 1890s, in favor of the interpretation we know of today. At the same time, the last amendment that was ratified was the 27th amendment in 1992. However, it was proposed in 1791.
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