No, the president cannot end birthright citizenship by executive order

President-elect Donald Trump has proposed sweeping changes to the federal government during his second term in office.

His plans to tackle immigration include creating “the largest mass deportation program in history” and reinstating first-term policies, such as “Remain in Mexico,” limiting migrants on public health grounds and severely limiting or banning entrants from certain majority-Muslim nations.

In addition to those proposals, many people on social media claim Trump will sign an executive order to end birthright citizenship — a right granted by constitutional amendment that guarantees citizenship to all children born on U.S. soil, regardless of their parents’ immigration status — on his first day in office.

“As part of my plan to secure the border, on day one of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship,” Trump says in a viral video with nearly 39 million views.

But others online suggest ending birthright citizenship is “unconstitutional” and impossible to terminate via executive order.

THE QUESTION

Can the president end birthright citizenship by executive order?

THE SOURCES

• 14th Amendment of the U.S. Constitution
• Agenda47, Trump’s policy agenda
• Paul Ryan, former speaker of the United States House of Representatives
• Omar Jadwat, director of the ACLU Immigrants’ Rights Project and professor at the New York University School of Law
• Neal Katyal, J.D., author, lawyer, constitutional law professor and former Acting Solicitor General of the United States during the Obama administration

THE ANSWER

No, the president cannot end birthright citizenship by executive order because it would violate the U.S. Constitution.

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WHAT WE FOUND

The president cannot end birthright citizenship by executive order like President-elect Donald Trump has pledged to do on the first day of his second term because it would be unconstitutional.

United States citizenship through birth comes via the 14th Amendment of the U.S. Constitution, which was ratified after the Civil War to secure citizenship for newly freed Black Americans. It was later used to guarantee citizenship to all babies born on U.S. soil after court challenges.

Section 1 of the 14th Amendment reads:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Amending the Constitution would require congressional action and ratification by three-quarters of the states. Experts agree that any executive order by Trump or any president to terminate birthright citizenship would likely be subjected to legal and judicial challenges.

Trump has talked about ending birthright citizenship in the U.S. for several years, including when he was running for president in 2015 and during his first term.

For example, in an exclusive interview with Axios in 2018, Trump pledged to sign an executive order that would remove the right to citizenship for babies of noncitizens and undocumented immigrants born on U.S. soil.

When asked about Trump’s comments, then-House Speaker Paul Ryan told Kentucky radio station WVLK that such a move would be “unconstitutional” and any changes to the amendment would require congressional action.

“You obviously cannot do that,” Ryan said. “You cannot end birthright citizenship with an executive order.”

Omar Jadwat, director of the ACLU Immigrants’ Rights Project, agreed with Ryan.

In a 2018 article titled “No, Mr. President. You Can’t Change the Constitution by Executive Order,” he wrote, “The president cannot repeal part of the Constitution by executive order. And Congress cannot repeal it by simply passing a new bill.”

“Amending the Constitution would require a two-thirds vote in both the House and Senate, and also ratification by three-quarters of the states,” Jadwat explained. “The effort to erase the citizenship guarantee will never clear those hurdles — for very good reasons.”

In the aftermath of the Civil War, Congress sought to push through a series of constitutional protections for newly emancipated Black Americans.

The 13th Amendment, which was ratified in December 1865, outlawed slavery. The 14th Amendment, ratified in July 1868, assured citizenship for all, including Black Americans. And the 15th Amendment, ratified in February 1870, awarded voting rights to Black men, stating those rights should not be denied based on “race, color or previous condition of servitude.”

By extending citizenship to those born in the U.S., the 14th Amendment nullified the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which held that those who descended from enslaved people could not be U.S. citizens.

Jadwat wrote that the Supreme Court later decided that the 14th Amendment also guaranteed citizenship to all children born on U.S. soil, regardless of their parents’ status, in 1898.

“In United States v. Wong Kim Ark, the justices found that a baby born in San Francisco to parents who were citizens of China — and subject to the Chinese Exclusion Act, which prohibited them from becoming U.S. citizens themselves — was automatically a citizen at birth,” Jadwat explained.

“The court specifically rejected the argument that a child in those circumstances was not ‘subject to the jurisdiction’ of the United States, and thus excluded from the Constitution’s citizenship guarantee,” Jadwat added.

Only a few categories of people are excluded from the Constitution’s citizenship clause:  children of foreign diplomats, children of enemy soldiers present in the U.S. during an occupation, and children of Native American tribes who have American citizenship under a separate provision of law, according to Jadwat.

Trump never issued an executive order to end birthright citizenship in 2018, but he has pledged to try again during his second term. He announced his most recent plan on May 30, 2023, in a video posted on his official campaign website under the Agenda 47 policy platform.

“As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship,” Trump said, arguing that the federal government’s interpretation of the 14th Amendment is “patently incorrect.”

But Neal Katyal, a constitutional law professor at Georgetown Law School and former Acting Solicitor General of the United States, says a president cannot “override the Constitution” by issuing an executive order to end birthright citizenship in the U.S.

“The 14th Amendment is as clear as day that there is no way he can do that. If he tries that, he will lose in court every day of the week,” Katyal said during a Nov. 10 interview with MSNBC host and former White House press secretary Jen Psaki.

The Associated Press contributed to this report.