Trump's birthright gamble faces constitutional roadblock

Executive order aiming to end birthright citizenship faces legal hurdles

The executive order issued by President Trump in January 2025 aims to redefine the criteria for birthright citizenship in the United States. It seeks to limit citizenship to children born in the U.S. only if at least one parent is a U.S. citizen or lawful permanent resident. This order challenges the traditional interpretation of the 14th Amendment, which grants citizenship to all persons born on U.S. soil, regardless of their parents' immigration status.

The order stipulates that citizenship will only be granted to children born in the U.S. if one parent is a U.S. citizen or lawful permanent resident. It excludes children of undocumented immigrants and those in lawful nonimmigrant status, such as H-1B and L-1 visa holders.

The question of whether an executive order ending birthright citizenship, like the one issued by President Donald Trump, would be unconstitutional hinges on the interpretation of the 14th Amendment of the United States Constitution, which was ratified in 1868 and includes the Citizenship Clause, which states: "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." It was intended to provide citizenship to former slaves and to establish a clear and inclusive definition of American citizenship.

The phrase "subject to the jurisdiction thereof" has been interpreted by most legal scholars to mean that anyone born on U.S. soil, with the exception of children of foreign diplomats and enemy soldiers, is automatically granted citizenship.

The Supreme Court case United States v. Wong Kim Ark (1898) affirmed the principle of jus soli (right of the soil), ruling that children born in the U.S. to foreign parents who are legally present in the country are U.S. citizens. This precedent supports the broad interpretation of the 14th Amendment's Citizenship Clause.

An executive order issued to end birthright citizenship will face significant legal challenges. Critics argue that changing the interpretation of the 14th Amendment's Citizenship Clause through an executive order would be unconstitutional because it effectively seeks to amend the Constitution without going through the formal amendment process, which requires a two-thirds majority in both houses of Congress and ratification by three-fourths of the states.

The executive order was quickly challenged in federal courts by several states and activist groups such as the ACLU. A federal district court judge, within 24 hours of the filing of the lawsuit, temporarily blocked Trump's executive order.

Senior U.S. District Judge John C. Coughenour issued an order blocking the policy from taking effect for 14 days until further briefing on a preliminary injunction to permanently block the executive order while the case proceeds.

"I've been on the bench for over four decades," Coughenour, a Ronald Reagan appointee, said. "I can't remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."

The case comes as four states (Washington, Arizona, Illinois and Oregon) sought to block the order before it is supposed to take effect in late February. It's one of five lawsuits filed by Democratic attorneys general and immigrant rights organizations challenging the order as unconstitutional.

Federal judges' injunctions and final decisions on constitutionality are expected to stop Trump's executive order and the DOJ is expected to appeal these orders to their respective courts of appeals where the President is expected to lose, with the exception of the Fifth Circuit, the most conservative of the appeals courts in the U.S. Then, the cases will end up at the Supreme Court, which currently has a 6-3 advantage to Trump, although in cases like this it is unclear how some less controversial justices will decide.

A Wall Street Journal poll from January 2025 indicates that a majority of voters (64%) oppose ending birthright citizenship. The order is part of broader efforts by the Trump administration to restrict immigration and redefine citizenship criteria, which have been criticized as advancing a nativist agenda.

The executive order represents a significant shift in U.S. immigration policy, challenging longstanding constitutional interpretations. It faces legal challenges and public opposition, highlighting the contentious nature of immigration reform in the U.S. The outcome of these legal battles will be crucial in determining the future of birthright citizenship.