by Carmen Gaskin ’25
December 17, 2024
The opinions expressed here are strictly those of the writer and do not reflect the views of University School of Nashville or the Peabody Press.
This month, President-elect Donald Trump has voiced the belief that a single person — himself – can exercise discretion over the rights of U.S. citizens.
In a weekend interview that aired December 8th with NBC News’s “Meet the Press,” Donald Trump tells Kristen Welker “we have to end” birthright citizenship–a legal principle under which citizenship for a country is automatically granted to individuals upon birth–in the United States through any means necessary for his agenda: aiming to restrict immigration and redefine what it means to be American within the country.
Trump’s comments about his mass deportation plan, a key promise of his presidential campaign, were the most expansive since he won the election in November. The program, he said, begins with the forced removal of undocumented immigrants who have committed crimes, and then advances to individuals “outside of criminals.”
“We’re starting with the criminals, and we got to do it. And then we’re starting with the others, and we’re going to see how it goes.” When asked by Welker “[w]ho are the others?,” Trump responded “others are other people outside of criminals.”
Following discussions around the mass removal of criminals, Trump began describing scenarios in which U.S. citizens are to be deported alongside family members who entered the country illegally. Echoing the comments of controversial Tom Homman, the former immigration official has suggested that undocumented immigrants “should be scared” under the Trump administration.
Families of mixed immigration status have now been guaranteed future deportation if the executive order is issued.
Trump’s approach to cracking down on the border crisis not only lacks compassion, but legal feasibility, as he seeks to repeal the 14th Amendment via an executive order – an action certain to generate immediate legal challenges.
In Section 1 of the Fourteenth Amendment, the U.S. Constitution declares that “[a]ll persons born or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
In the unlikely event that Trump’s plan were to go fully into effect, implementation of Trump’s initiatives would be tricky, as federal agencies do not have access to immigration status at the snaps of their fingers. Officials would not only need to access information on a child, but data on both parents entirely.
A Social Security Administration spokeswoman noted that the agency does not hold data on immigration status, as it verifies information with the Department of Homeland Security before issuing immigrants a Social Security Number.
Emma Winger, a lawyer at the American Immigration Council, said Trump’s proposal would affect any child born in the United States, as every parent, regardless of immigration status, would be forced into taking an additional bureaucratic step to ensure their baby is registered as a citizen.
Trump’s initiatives are an attempt to tear down one of the core constitutional protections that has been a key part of our country.
When questioned in regards to the flexibility of his plan, Trump conceded, in a nod to that original pesky constitutional text, preventing him from removing U.S. citizens from their soil, that “we’ll maybe have to go back to the people.”
Yet he has taken verbal aim at birthright citizenship many times before. Trump pledged to end birthright citizenship in 2015, and he raised the question again on October 30, 2018, having planned to sign another executive order, in an exclusive interview for “Axios” on HBO.
And so, before he takes this country any further down this path, a path that alienates legal U.S. citizens from their families, friends, and loved ones, it’s worth remembering why birthright citizenship is not “ridiculous” as Trump expressed, but a defining aspect of this country’s national character.
Michael Gerson, a late Washington Post columnist said it best in a 2018 article dismantling the falsehoods and inaccuracies of Trump’s anti-immigration advocacy: “Any political movement that regards the plain meaning of the 14th Amendment as an obstacle to its political intentions has earned a great deal of suspicion.”
The 14th Amendment’s ratification in 1868 solidified the political transformations for which thousands of Union Army soldiers – a battalion that contained nearly 200,000 Black soldiers – had sacrificed their lives, refuting the practice that a person’s race or ethnicity should determine citizenship.
Its authors intended to undo the Supreme Court in the 1857 Dred Scott v. Sanford decision, in which the Court determined that both freed Black individuals and slaves were not citizens of the United States, and therefore, could not expect any protection from the federal government or the courts, under Article III of the Constitution.
Generally speaking, it offers a coherent, simple standard for determining who qualifies as an American, by which the color of one’s skin and their ancestry are considered irrelevant.
The legal argument proposed by anti-immigration advocates emphasizes the language of the 14th Amendment, voicing that birthright citizenship is awarded to those “subject to the jurisdiction” of the United States.
Opponents of birthright citizenship say that language targets anyone whose parents illegally entered the country as immigrants.
Not so. Most legal experts say the jurisdiction language only refers to individuals not bound by “U.S. law.” Moreover, historians widely agree that the phrase of those not “bound by U.S. law” was intended to exempt two groups of people from birthright citizenship: children of foreign diplomats and members of Native American tribes that maintained sovereign status under treaties with the U.S. government. (However, Native Americans did acquire birthright citizenship by statute in 1924.)
The original author of the 14th Amendment, John Bingham, acknowledged these sentiments, and have long ruled in favor of birthright citizenship regardless. In 2009, Senator John Conness of California, when presented with concerns that children of Chinese migrants to the country would be granted citizenship under the amendment, made his position clear: “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”
Debates surrounding the legal status of Chinese citizens are not foreign to the country, taking root as far back as the 19th century. In the 1898 case United States v. Kim Wong Ark, the Court ruled that a man born in San Francisco to parents both from China was a United States citizen.
Trump has suggested these debates surrounding birthright citizenship are uniquely American, saying “we’re the only country that has it, you know.” Proven false by a review conducted by the Library of Congress, more than 30 nations provide birthright citizenship, including Canada and Brazil, two U.S. allies.
This is the history President-elect Donald Trump desperately seeks to undo via executive fiat. Enforcement of this plan might please anti-immigration groups which have argued birthright citizenship creates perverse incentives for immigrants to have children in the U.S, in what they disparage as “birth tourism.”
Birth tourism is a situation in which the Trump administration claims expectant parents visit the U.S. towards the end of the third trimester of pregnancy, in order to ensure the child is born a U.S. citizen.
While in rare instances individuals have exploited the law, having citizen children does not protect undocumented immigrants from deportation. Children can’t sponsor their parents until they are 21, and additionally, children must be able to support their parents financially.
These rare instances do not constitute the removal of birthright citizenship.
Nearing the end of the NBC interview, Trump signaled openness to work with Democrats regarding “Dreamers”– children who were brought to the United States without documentation – in Congress to provide resources for safe removal and reentry into the country.
However, threatening the cornerstone of American citizenship law does not promote negotiations in good faith.
While a repeal of the 14th Amendment, with any intention to end or limit birthright citizenship would most likely fail in court, Trump’s attempts to do so reveal a misunderstanding of the nation’s history – and what ultimately makes it great.
