As he promised during his campaign, President Donald Trump began cracking down on immigration from his first day in office. These include declaring a national emergency at the U.S.-Mexico border, suspending the U.S. Refugee Admissions Program, and ending birthright citizenship.

Despite the fact that the latter is one of the most controversial actions for being unconstitutional, Trump’s order instructs federal agencies not to recognize children born on U.S. soil if at least one parent is not a U.S. citizen or green card holder.

This order will go into effect within 30 days. However, the order has already received its first lawsuit, and many more are expected to be filed in the coming days.

The lawsuit, filed in New Hampshire, was signed by 26 attorneys who argue that the order violates the 14th Amendment of the Constitution.

The attorneys general of 18 states also joined in suing President Trump on Tuesday to block the executive order.

What does the 14th Amendment say?

The 14th Amendment states,
“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 in which they reside.”
Historically, the Supreme Court has interpreted this provision to include U.S.-born children of noncitizens, as in United States v. Wong Kim Ark (1898), where it was stated that a child born in San Francisco to Chinese parents was a U.S. citizen.

The Birthright Citizenship Debate in the U.S.
Birthright citizenship, guaranteed by the 14th Amendment to the Constitution, grants citizenship to anyone born on U.S. soil, regardless of their parents’ immigration status. This principle, established after the Civil War in 1868, has been a pillar of equality and justice in the country. However, former President Donald Trump has proposed removing this guarantee through an executive order, claiming that the phrase “subject to U.S. jurisdiction” leaves room for legal reinterpretations.

What can Trump do according to the law?

A president does not have the unilateral authority to change rights guaranteed by the Constitution. That’s why the proposed executive order faces several legal hurdles:

1. Clear court precedents: Cases such as Wong Kim Ark and Plyler v. Doe (1982) have held that the 14th Amendment protects all people born in the U.S.
2. Limitations of an Executive Order: Executive orders cannot reinterpret federal laws or the Constitution.
3. Immediate lawsuits: The American Civil Liberties Union (ACLU) has already filed a lawsuit, arguing that the order exceeds presidential authority and violates the Constitution.

What is needed to amend the Constitution?

Changing the 14th Amendment would require an extremely complex process:

1. Approval in Congress: Two-thirds support is needed in both houses (Senate and House of Representatives).
2. State ratification: At least 38 states must ratify the amendment.
3. Constitutional Convention: Alternatively, 34 states could request a constitutional convention, something that has never happened in U.S. history.

The amendment process is intentionally difficult to protect fundamental rights.

Political and social impact

The attempt to eliminate birthright citizenship has generated intense political polarization in the United States. Proponents of this proposal, mostly Republicans, argue that eliminating this right could deter illegal immigration and ease the burden on social services.

However, Democrats and civil rights organizations argue that this approach unfairly criminalizes immigrants and attacks fundamental principles of equality and justice.

It could also create a hereditary class of stateless people: children born in the United States who have no legal rights or protection in any country. Not only does this contradict American values of inclusion and opportunity, but it could also perpetuate cycles of poverty and social exclusion.

With this, immigrant communities would face greater uncertainty, and the fear of deportations could deter people from seeking education, health care, or even reporting abuse.

An almost impossible challenge

Although Trump has promised to eliminate birthright citizenship, legal, historical and political hurdles make his proposal virtually unworkable. The rights guaranteed by the Constitution are designed to withstand changes driven by political interests, ensuring stability and justice for all people born in the U.S.

Birthright citizenship is not only a constitutional right, but a symbol of the nation’s core values.

If you have any questions, consult with an immigration attorney for specialized advice. At Eagan Immigration, we conduct free evaluations of your immigration case. You can call us at 202-709-6439 to schedule your appointment or do it through this link.