By John Q. Hosedrinker 
President-elect Trump aims to end birthright citizenship via executive order, mandating at least one US citizen parent for automatic citizenship and denying benefits to children of two undocumented parents. Legal experts overwhelmingly believe this action would violate the 14th Amendment and the precedent set by *United States v. Wong Kim Ark*, rendering it likely unsuccessful in court. The proposed order could affect millions of children in mixed-status families, disproportionately impacting those of Mexican and Central American descent. Ending birthright citizenship would require a constitutional amendment, a politically improbable feat.
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The law is clear on birthright citizenship, enshrined in the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This seemingly straightforward clause has become a focal point of intense political debate, particularly with the assertion that a president could, despite this clarity, attempt to end it.
The core of the argument against birthright citizenship centers on the phrase “subject to the jurisdiction thereof.” Some interpret this to exclude the children of undocumented immigrants, arguing that these children aren’t fully under US jurisdiction because their parents aren’t legally here. This interpretation, however, ignores a substantial body of legal precedent and the practical reality that undocumented immigrants are, in many ways, subject to US law: they can be taxed, imprisoned, and even drafted.
This narrow interpretation clashes with the Supreme Court’s ruling in *United States v. Wong Kim Ark*, which affirmed birthright citizenship for a child born in the US to Chinese parents. The court has consistently upheld this interpretation for over a century, establishing it as settled law. Yet, the willingness of some to disregard “settled law” in other areas raises serious concerns about the potential for a similar disregard in this case.
The possibility of a president unilaterally ending birthright citizenship rests heavily on the power of interpretation, and specifically, the Supreme Court’s role in defining the Constitution’s meaning. If the court were to adopt a radically different interpretation of the 14th Amendment, potentially driven by an “originalist” approach focusing on the intent of the framers rather than the established legal precedent, the president could potentially act on that new interpretation. This however would be a dramatic shift, potentially overturning decades of established legal understanding and practice.
Furthermore, the very concept of “original intent” is itself contested and open to selective application. While attempting to uncover the original meaning behind constitutional clauses is a valid legal approach, this process could easily be manipulated to achieve a desired outcome, especially considering the current political climate. The concern is that a politically motivated interpretation of a historical debate could lead to a decision that overturns birthright citizenship, creating far-reaching consequences and raising concerns about the stability of established legal interpretations.
The current political landscape further complicates this issue. The erosion of institutional norms and the seeming disregard for established legal precedents has raised concerns that the rule of law, in itself, may be threatened. A president’s power to act is, to a large extent, dependent on the willingness of Congress and the courts to check such action. If these checks and balances fail, the potential for a president to act beyond their constitutional authority, including attempting to end birthright citizenship despite its clear legal standing, increases significantly.
Ultimately, the question of whether a president *can* end birthright citizenship is not a simple yes or no. The law, as it currently stands, is clear. However, the willingness to circumvent or reinterpret established legal precedent and the potential for a politically motivated Supreme Court decision leaves the door open to the possibility. The question then becomes not merely of legal interpretation, but of whether the institutional checks and balances will function effectively enough to prevent such an action. The lack of consequences for previous violations of established norms only adds to the uncertainty surrounding this critical issue. The fate of birthright citizenship, therefore, hangs precariously on the ongoing struggle between legal clarity and political will.