Why an executive order cannot void birthright citizenship

On Behalf of | Oct 30, 2018 | Citizenship

Birthright citizenship is common in many countries around the world—and it has been a founding principle of United States government. Anyone born in the U.S.—regardless of the citizenship of their parents—is automatically an American citizen.

President Trump has continually attacked so-called “anchor babies”—children who are born in the U.S. to undocumented immigrants and thereby receive citizenship rights. In an interview this week, the president described his plans to draft an executive order that would put a stop to birthright citizenship. This announcement has sent shockwaves across the country—leaving many first-generation citizens concerned about their status.

However, the president’s proposition is not as feasible as he claims. First, the wording in the 14th Amendment is clear: anyone who is born or naturalized in the U.S is a citizen of this country. Second, the amendment clearly states that it is not within the president’s power to “to enforce, by appropriate legislation, the provisions of this article.” Rather, this power rests with Congress.

Therefore, although the president has proposed issuing an executive order to alter the terms of the 14th Amendment, such an order would have no legal bearing on birthright citizenship. The only way to change this law would be by constitutional amendment—which requires the support of congress. House Speaker Paul Ryan voiced his opinion that conservatives believe in “following the plain text of the Constitution.” Therefore, there is little indication that such a constitutional amendment—if drafted—would pass.

Finally, it’s worth noting the president has taken no action on his plan so far. Political analysts have speculated that the timing of his comments—one week before the midterm elections—could simply be a move to stoke support among the anti-immigrant faction of the Republican Party.

Although the president’s recent comments surrounding birthright citizenship may be unsettling to many children of undocumented immigrants, it’s important to keep in mind that so far, it’s just talk. On this issue, the president has no authority to change the law himself. In addition, any effort to amend the law would be met with a swift constitutional challenge.