Posted on Wednesday, December 11, 2024

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by Aaron Flanigan

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As Americans prepare for Inauguration Day just over one month from now, the national focus is once again turning to President-elect Trump’s plans to end the practice of birthright citizenship—a crucial component of his plan to end the border crisis and restore national sovereignty.

In May 2023, five years after Trump first floated the idea of ending birthright citizenship—which automatically grants U.S. citizenship to children born to illegal aliens on American soil—then-candidate Trump officially announced his plan to formally stop the practice upon his return to the White House in January 2025, which is now eliciting significant attention in the media and the Washington, D.C. political class.

“This policy is a reward for breaking the laws of the United States and is obviously a magnet, helping draw the flood of illegals across our borders,” Trump stated in a policy video. “The United States is among the only countries in the world that says that even if neither parent is a citizen nor even lawfully in the country, their future children are automatic citizens the moment the parents trespass onto our soil. As has been laid out by many scholars, this current policy is based on a historical myth and a willful misinterpretation of the law by the open borders advocates.”

As Trump notes in the video, most legal scholars openly acknowledge that the constitutional basis for birthright citizenship is virtually nonexistent. As Hillsdale College professor and former Trump White House official Michael Anton put it in a 2018 Washington Post op-ed, “The entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment.” He continued: “The purpose of that amendment was to resolve the question of citizenship for newly freed slaves,”—but it has since been distorted by progressives and broadened beyond its original scope.

The legality of birthright citizenship, Anton wrote, is an “absurdity—historically, constitutionally, philosophically and practically.”

Proponents of birthright citizenship often insist that efforts to outlaw the practice are unconstitutional because the Supreme Court previously ruled in its favor. But as legal scholar Edward Erler noted in a 2015 op-ed, “there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship.”

In the 1898 case Wong Kim Ark, which liberals often cite as proof of the supposed constitutionality of birthright citizenship, the Court ruled that children of legal immigrants were entitled to birthright citizenship under the 14th Amendment, which holds that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The key phrase here is “subject to the jurisdiction thereof.” In other words, the Court’s ruling did not apply to illegal aliens – meaning the president likely has the legal authority through executive order to end birthright citizenship for the children of illegal aliens.

“Such an order would, of course, immediately be challenged in the courts,” Anton stipulated in his Post op-ed. “But officers in all three branches of government—the president no less than judges—take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?”

In his May 2023 policy video, Trump pledged to do precisely this when he returns to the Oval Office as the 47th President.

“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. “My policy will choke off a major incentive for continued illegal immigration, deter more migrants from coming, and encourage many of the aliens Joe Biden has unlawfully let into our country to go back to their home countries.”

Already, the conservative legal movement is preparing to fight back against the left’s inevitable challenges to the incoming Trump administration’s attempts to end the practice. Judge James Ho of the United States Court of Appeals for the Fifth Circuit, who was appointed by President Trump in 2018 and is widely considered to be a Supreme Court contender should a High Court vacancy arise during Trump’s second term, has stated that “invading aliens” should not be entitled to birthright citizenship.

“Birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” he said in a recent interview with Reason.

“It’s like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn’t apply to the children of lawful combatants,” he continued. “And it’s hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.”

Of course, it remains unclear whether other judges who may hear challenges to a potential Trump executive order on the matter will accept Ho’s line of reasoning if they are forced to grapple with the issue next year.

But as Donald Trump prepares to take the oath of office less than two months from now, debates over the legality and political practicality of ending birthright citizenship are almost certain to intensify. And come January, in spite of legal challenges, the president-elect could very well be in a position to finally end the practice and remove a major incentive for illegal border crossings.

Aaron Flanigan is the pen name of a writer in Washington, D.C.