The second Donald Trump Administration started its first week seeking to end birthright citizenship. Republicans in Texas immediately followed suit despite the fact that such a law and the executive order it imitates are almost certainly unconstitutional according to experts.
On his first day in office, Trump issued an order stating that birthright citizenship does not apply to people born on U.S. soil whose parents are not citizens themselves.
“The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” the order reads. It is slated to take effect on February 19 and is not retroactive.
Not to be outdone, a collation of Texas Republicans in the U.S. House of Representatives led by Brian Babin (R-Woodville) filed a bill that would limit birthright citizenship to people with at least one American citizen parent. He was joined by eight other Texas Republicans.
“This common-sense legislation corrects decades of misuse and closes the loophole that incentivizes illegal immigration and exploits U.S. citizenship through birth tourism,” Babin said in a statement.
The push to end birthright citizenship hinges on two things: an idiosyncratic reading of the 14th Amendment and the inertia from a recent conservative win against that same amendment. For nearly half a century, the right to access reproductive care in the form of abortion was protected by the 14th Amendment. When the U.S. Supreme Court overturned Roe v. Wade in 2022, it was under the pretense that the amendment was never meant to cover such a medical procedure.
However, the equal protection clause of the 14th Amendment does not overtly protect abortion, which partially led to the loss of constitutionally protected access. Reproductive medical choice was merely one of the freedoms implied by the amendment.
Still, the loss of reproductive freedom under the 14th Amendment emboldened conservatives. They are up against a much tougher fight on birthright citizenship. The amendment states that “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.” Trump’s order relies on the interpreting the phrase “subject to the jurisdiction” as not applying to undocumented immigrants.
No prominent constitutional legal scholar agrees with this reasoning. Natalia Polukhtin, Vice Chair of the Ethics Committee for the American Immigration Lawyers Association, told the Latin Times:
“The 14th Amendment’s citizenship clause provides that all children born in the U.S. are citizens, with very limited exceptions . . . There is no precedent in the country’s history allowing the executive branch to unilaterally change a fundamental legal principle bypassing the legislative and judiciary branches.”
Within hours of Trump’s order, the League of United Latin American Citizens (LULAC) filed a lawsuit against the Trump Administration challenging the order’s constitutionality.
“With this executive order, the President of the United States is once again attempting to violate the civil rights of American citizens and their immigrant family members,” said Juan Proaño, chief executive officer of LULAC in a statement. “This effort to demonize Brown and Black immigrants targets all immigrants in this country, regardless of their background. If not stopped, it will undermine the very essence of what it means to be an American and will tear families apart.”
The stated text of the 14th Amendment leaves very little wiggle room for Trump’s executive order. Ending birthright citizenship would require a new constitutional amendment, something that is unlikely when Republicans have slim majorities in both houses of congress and across the state legislators. Even if Texas Republicans do succeed in pushing their bill through the House, it would face the same constitutional challenges as a law that an executive order would. For these initiatives to succeed, nearly the entirety of the constitutional system would have to be undone.