By Dr. Sam Zahy: Earning U.S. Citizenship by Birthright and the Constitutionality of Trump's Executive Order

Dr. Sam Zahy

 

*Earning U.S. Citizenship by Birthright and the Constitutionality of Trump's Executive Order*

By Dr. Sam Zahy- Attorney at Zahy Law Group

The concept of birthright citizenship, often referred to as "jus soli" (right of the soil), is a foundational principle of U.S. citizenship. Under the 14th Amendment of the U.S. Constitution, anyone born on U.S. soil is automatically granted citizenship, regardless of their parents' immigration status. This principle has been a cornerstone of American immigration policy since the amendment's ratification in 1868. However, in recent years, the idea of birthright citizenship has come under scrutiny, particularly during the presidency of Donald Trump, who proposed an executive order to end the practice. This article explores the origins of birthright citizenship, its legal basis, and the constitutional debate surrounding Trump's proposed executive order.

Birthright Citizenship in the United States

The 14th Amendment 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." This clause was enacted to ensure that formerly enslaved African Americans were granted citizenship after the Civil War. Over time, it has been interpreted to mean that anyone born on U.S. soil, with very few exceptions, is a U.S. citizen.

Birthright citizenship has played a significant role in shaping the American identity, fostering inclusivity, and providing a clear path to citizenship for millions of individuals. It has also been a source of controversy, particularly in debates about immigration reform. Critics argue that birthright citizenship encourages "birth tourism," where individuals travel to the U.S. solely to give birth and secure citizenship for their children. Proponents, on the other hand, emphasize its importance in maintaining equality and preventing a hereditary caste system.

Trump's Executive Order Proposal

During his presidency, Donald Trump repeatedly expressed his intention to end birthright citizenship through an executive order. In a 2018 interview, Trump claimed that he could overturn birthright citizenship without a constitutional amendment, arguing that the 14th Amendment's language—"subject to the jurisdiction thereof"—excludes children of undocumented immigrants. Trump's proposal sparked widespread debate about the limits of executive power and the interpretation of the Constitution.

Is Trump's Executive Order Constitutional?

The constitutionality of Trump's proposed executive order is highly contested. Legal scholars and constitutional experts have raised several key points:

The 14th Amendment's Language*: The 14th Amendment explicitly grants citizenship to those born on U.S. soil and "subject to the jurisdiction thereof." Historically, this phrase has been interpreted to exclude children of foreign diplomats and enemy combatants, as they owe allegiance to another country. However, courts have consistently ruled that children of undocumented immigrants are "subject to the jurisdiction" of the U.S. and therefore entitled to birthright citizenship.

Supreme Court Precedent*: The Supreme Court case United States v. Wong Kim Ark (1898) is often cited as a landmark decision affirming birthright citizenship. The Court ruled that a child born in the U.S. to Chinese immigrant parents was a U.S. citizen under the 14th Amendment. This precedent has been upheld for over a century and would likely pose a significant obstacle to any attempt to eliminate birthright citizenship via executive order.

Separation of Powers*: The Constitution grants Congress, not the president, the authority to establish rules for naturalization. An executive order attempting to redefine citizenship would likely be challenged as an overreach of presidential power and a violation of the separation of powers.

Political and Practical Challenges*: Even if an executive order were issued, it would face immediate legal challenges, potentially leading to a protracted court battle. Implementing such a policy would also require significant changes to federal and state systems for issuing birth certificates and other documentation.

Conclusion

Birthright citizenship remains a deeply entrenched principle in U.S. law, rooted in the 14th Amendment and upheld by over a century of legal precedent. While Donald Trump's proposed executive order to end birthright citizenship sparked a national debate, its constitutionality is highly questionable. Legal experts argue that such a move would require a constitutional amendment, not merely an executive order, and would likely be struck down by the courts.

The debate over birthright citizenship reflects broader tensions in American society about immigration, identity, and the rule of law. As the U.S. grapples with these issues, the principle of birthright citizenship will likely remain a central topic of discussion—and a testament to the enduring power of the 14th Amendment.