This contentious issue, a key component of Trump's immigration enforcement platform, has divided immigration advocates and border hawks alike. The crux of the debate lies in the interpretation of the 14th Amendment, a matter that will likely be decided by the Supreme Court.
According to the Daily Caller, Christopher Hajec, the director of litigation for the Immigration Reform Law Institute (IRLI), a Washington, D.C.-based organization advocating for stricter immigration laws, stated, “Our position is that the 14th Amendment gives citizenship at birth only to those born in the United States to parents who were residing here with the permission of the United States.” Hajec referred to the Supreme Court's ruling in Wong Kim Ark v. United States, a still-controlling case, to support his argument.
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Hajec further explained, “The Court reasoned that only those residing here with permission met the requirement in the 14th Amendment of being ‘subject to the jurisdiction’ of the United States. Under this rule, children of illegal aliens (who do not reside here with permission) or children of tourists (who do not reside here, but are only visiting) are not citizens by virtue of their birth here.”
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The Wong Kim Ark v. United States case, decided in 1898, established birthright citizenship as a constitutional right. However, the decision was not unanimous. Chief Justice Melville Fuller and Associate Justice John Harlan dissented, arguing that Chinese aliens were not “subject to the jurisdiction” of the U.S. because they retained allegiance to the Chinese emperor. This dissent has largely shaped contemporary objections to the landmark decision.
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Trump, who campaigned heavily on a hardline immigration platform, emerged victorious on Election Day. His immigration proposals include resuming construction on the southern border wall, conducting the largest deportation operation in U.S. history, reviving the Remain Mexico program, and imposing high tariffs on Mexico and Canada if they fail to curb illegal migration.
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Trump also plans to re-examine the first sentence of the first section of the 14th Amendment, 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.” Trump recently stated during an interview on NBC’s “Meet the Press”, “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.”
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Trump believes that revoking birthright citizenship from those born to illegal migrant parents is the correct interpretation of the law, a view supported by Hajec. However, left-wing proponents of lax immigration laws, such as the American Civil Liberties Union (ACLU) and the American Immigration Lawyers Association, have criticized this idea, calling it “blatantly unconstitutional” and advocating for the protection of the current interpretation of the law.
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The Migration Policy Institute, while not commenting on the legality of Trump’s proposal, pointed to a study that warned against revoking birthright citizenship on humanitarian grounds. The study concluded that such a move would create a “self-perpetuating class” of people excluded from social membership and would actually increase the number of illegal migrants living in the U.S.
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However, border hawks argue that the misinterpretation of the 14th Amendment has incentivized illegal immigration into the U.S., with countless foreign nationals flocking to the country in hopes of their children gaining citizenship. This, they argue, paves the way for the individual’s family unit to remain in the U.S. and reap numerous taxpayer-funded benefits.
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Joey Chester, communications manager of the Federation for American Immigration Reform (FAIR), stated, “President-elect Trump is right: birthright citizenship must end. Birthright citizenship rewards lawlessness, and ultimately encourages more illegal immigration, by granting U.S. citizenship to the children of illegal aliens and increasing the likelihood that the illegal alien parents will obtain permanent residency.”
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While Trump was criticized for claiming that the U.S. is the only country that provides birthright citizenship, the CIA World Factbook reveals that only a small number of countries worldwide do so. Notably, no member country of the European Union offers unconditional citizenship at birth, nor do several other U.S. allies in the West.
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The issue of birthright citizenship is not confined to those in the country unlawfully. The practice has given rise to an international industry known as “birth tourism,” where hundreds of thousands of foreign nationals on tourist visas are believed to be giving birth on U.S. soil each year.
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The U.S. has experienced a severe border crisis under the Biden-Harris administration, with fiscal years 2023 and 2024 being the worst years in the country’s history for migrant encounters. There were approximately 8.5 million migrant encounters along the southern border during the four fiscal years of Biden’s White House tenure, and immigration became a major concern for American voters.
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FAIR has urged Trump and Republicans in Washington, D.C., to take action on the birthright citizenship issue, but also acknowledged that a court battle would likely ensue. Chester stated, “Congress must pass legislation that interprets the full text of the 14th Amendment and clarifies that children born to illegal aliens in the U.S. will not be granted U.S. citizenship. Unfortunately, we know that if President-elect Trump ends birthright citizenship, through executive action or by signing a law passed by Congress, open-borders advocates will immediately sue to strike down the measure.”
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The ACLU, one of many liberal organizations opposed to Trump’s immigration agenda, has filed over 400 legal actions against Trump and his first administration since 2016. The group reportedly has a plan-of-action underway to obstruct Trump’s second-term border enforcement proposals.
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Chester concluded, “Ultimately, the Supreme Court will need to decide the issue.” This statement underscores the complexity of the birthright citizenship debate and the potential legal battles that lie ahead in the quest to resolve it.
