President Donald Trump began his second term in office by enacting a series of executive actions, of which includes the issuance of an executive order to end birthright citizenship in the United States. This policy, rooted in the 14th Amendment of the Constitution, which has been previously interpreted as granting citizenship to anyone born on U.S. soil, asserts instead that the amendment’s “subject to the jurisdiction thereof” clause has been misconstrued and seeks to narrow its definition to exclude children born in the U.S. to unauthorized immigrants and temporary visa holders going forward.
Birthright citizenship was established in 1868 as part of the 14th Amendment, primarily aimed at securing citizenship rights for formerly enslaved individuals as well as free black residents and their descendants, who had not been previously recognized as citizens by the United States. However, as Chinese migrants began entering the west coast, the issue of whether this constitutional provision would extend beyond its original purposes was decided in United States v. Wong Kim Ark(1898), where the Supreme Court ultimately ruled that automatic citizenship at birth on U.S. soil would apply to people of any race, provided only that the child’s parents are not foreign diplomats or occupying forces.
The Trump administration contests this application of the 14th Amendment, arguing that the language of the amendment, particularly the phrase “and subject to the jurisdiction thereof” was not intended to apply to children of unauthorized immigrants and temporary visa holders. On these grounds, the recently issued executive order seeks to exclude birthright citizenship to such individuals. If enforced, legal experts suggest that the policy may result in an increase in the number of stateless individuals and impact complications for families, hospitals, governmental agencies, and international relations.
This move is already facing legal challenges from several civil rights organizations and has been sued by 22 states thus far. As of January 23rd, U.S. district Judge John Coughenour has granted the request to temporarily halt the executive order nationally on the basis of its unconstitutionality. A following hearing is scheduled on February 6th to discuss a preliminary injunction, which would block the order long term while the case proceeds if issued.
Altering the interpretation of a constitutional amendment typically requires either Supreme Court intervention or a constitutional amendment itself. While the president does have the power to issue executive orders to interpret laws as derived from Article II of the Constitution, they must nevertheless adhere to existing laws within the constitution, laws passed by Congress, or rulings made by courts. As such, some legal experts anticipate the order will be ruled unconstitutional. The Trump administration may appeal such a ruling, in which case it may escalate through lower courts for review by the Supreme Court. While consensus has been that such an outcome is unlikely given the Amendment’s decades long precedent, with the current majority conservative Supreme Court and broader political climate, some suggest that its implementation is far from certain. Ultimately, the result will hinge on interpretation of the 14th Amendment and the limits of executive power.
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