President Donald Trump plans to sign an executive order that would end the right to citizenship based on birth in the United States for children born to undocumented immigrants, according to an interview he gave to Axios.

The president said he has been told that he can amend the 14th Amendment of the Constitution without Congressional consent and “just with an executive order.”

Key points:

  • The citizenship clause of the 14th Amendment has generally been interpreted to mean that any person born in the United States automatically gains U.S. citizenship, regardless of the citizenship or immigration status of the person’s parents, with limited exceptions such as children born to recognized foreign diplomats.
  • An executive order would attempt to reinterpret the 14th Amendment such that children born in the United States to unlawful immigrants would not become U.S. citizens at birth.
  • Such an order would go against Supreme Court jurisprudence dating back to 1898 and the prevailing view of legal scholars, and would face immediate legal challenge.

Background: The first clause of the 14th Amendment, known as the citizenship clause, provides that “[a]ll 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.”

The long-established view of the executive branch and the courts is that undocumented immigrants are “subject to the jurisdiction” of the U.S. Conservatives who want to limit birthright citizenship have argued that the term “jurisdiction” should be read to mean “complete jurisdiction” based on undivided allegiance to the U.S. and mutual consent between the U.S. government and the individual, which they argue undocumented parents do not have.

BAL Analysis: Although Congress has at times contemplated changes to the 14th Amendment through legislation, the executive branch has never seriously considered unilaterally changing its interpretation of it. An executive order would be subject to legal challenge and we anticipate a court would enjoin implementation of the executive order pending legal review. The president’s statement—just days before the mid-term election—is best viewed as a political pronouncement intended to rally his supporters who care about illegal immigration. The likelihood of the administration successfully changing birthright citizenship is remote.

Read BAL legal analysis here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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