A look at birthright citizenship

What is birthright citizenship?

A right, recognized by about 30 nations, including the U.S., to claim citizenship in the country where you were born.

What does the Constitution say about birthright citizenship?

The Fourteenth Amendment, one of three constitutional amendments enacted after the Civil War to promote equality, begins, “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.”

How has the Supreme Court interpreted that language?

In a 6-2 ruling in U.S. vs. Wong Kim Ark in 1898, the court said all U.S.-born children are U.S. citizens at birth, with a few narrow exceptions, including children of foreign diplomats and children of hostile forces occupying the U.S. All others, regardless of parentage, are “subject to the jurisdiction” of the United States and thus protected by the Fourteenth Amendment, the court said.

The case before the court involved a San Francisco man who was denied permission to leave a steamship and return to his home in the city because his parents were noncitizens who had been born in China, but were living legally in this country. The court did not draw a distinction between the children of parents who were documented or undocumented, and the ruling has generally been interpreted as conferring citizenship on all children born in the United States. But a future Supreme Court could make that distinction.

Does Trump have the power to enforce his executive order?

No, unless the court revisits and reinterprets or overturns the 1898 ruling. Such an order, if it were to take effect, would apply only to future children, not to those already holding birthright citizenship. As of November 2016, according to the Pew Research Center, there were 3.9 million U.S. children in grades kindergarten through 12 whose parents included at least one undocumented immigrant.

Unless the Supreme Court changes course on the issue, it would require a new constitutional amendment. A new amendment can be proposed by Congress, with two-thirds approval in both houses, or by a constitutional convention called by legislatures in two-thirds of the states. Final approval requires ratification by legislatures in three-fourths of the states.