ABA LEGAL FACT CHECK

President faces long odds in overturning birthright citizenship

In the runup to last week’s midterm elections, President Donald Trump kicked off a national debate when he asserted a presidential executive order could overturn citizenship that is automatically granted to U.S.-born children of undocumented immigrants. “They’re saying I can do it just with an executive order,” the president told reporters. 

The president’s position was met with strong opposition, including from influential members of his own Republican party. As outlined by ABA Legal Fact Check last week, the legal landscape would appear to be against him. And with the Democrats taking control of the House, Trump’s suggestion faces even stronger headwinds.

In making his claim, the president and a few legal scholars point to the clause in the 14th Amendment granting birthright citizenship that reads: “subject to the jurisdiction thereof.” They note that the U.S. Supreme Court has never directly addressed that language in the context of birthright citizenship.

But a string of U.S. Supreme Court cases would appear to work against the president’s argument, according to ABA Legal Fact Check. In 1898, the court upheld the concept of birthright citizenship in a 6-2 ruling, noting “in this as in other respects, it must be interpreted in the light of the (English) common law.”

In a 5-4 vote in 1982, the court provided undocumented children the right to a public education. A Texas school district argued that persons who entered the U.S. illegally are not “within the jurisdiction” of a state even if they are present within its boundaries and subject to its laws. The majority rejected that argument, saying “the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.”

So, according to ABA Legal Fact Check, unless the U.S. Supreme Court has a change of mind, it would appear the president has a weak case based on legislative and case law.

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