By Nazo Demirdjian
President Donald J. Trump, who was elected to a second non-consecutive term in 2024 (only the second president to do so), has promised, once again, to end birthright citizenship in the United States, through executive order if necessary. Birthright citizenship grants citizenship to anyone born within the jurisdiction of the United States. It was explicitly added to the Constitution in 1868 via the Fourteenth Amendment in an effort to finally end the debate of citizenship status for newly-freed enslaved persons. Section I of the Fourteenth Amendment provides, “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . .”
Birthright citizenship is not a newly controversial topic. It has been debated before and even reached the Supreme Court in 1898. In United States v. Wong Kim Ark, the Supreme Court held that a child of non-American citizens who is born in the United States, is a citizen if the parents “have a permanent domicil (sic) and residence in the United States.” Justice Gray, writing for the majority, noted that “[t]he Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Put simply, those born in the United States, without regard to any inalienable characteristic, are citizens of the United States upon their birth. However, Wong Kim Ark provides three exceptions – children of diplomats and ambassadors, “children of members of the Indian tribes,” and children of enemies.
Notwithstanding the existing caselaw, there are three arguments President Trump may raise to accomplish his goal of ending birthright citizenship. First, President Trump may point out that one of the three exceptions found in Wong Kim Ark is that birthright citizenship does not extend to children born “of enemies within and during a hostile occupation of part of our territory.” President Trump has used this argument before by declaring mass undocumented immigration an “invasion of our country.” The President is poised to argue that immigrants’ children born in the U.S. are children “of enemies within and during a hostile occupation . . .” However, it would be an absurd argument to equate the children of undocumented immigrants to legitimate enemies and terrorists. Wong Kim Ark’s “enemies” language refers to instances where a nation has invaded the United States where those invaders gave birth to their children on occupied U.S. territory – similar to the 2022 Russian invasion of Ukraine. Those children would not be citizens. The Court might consider an argument equating children of undocumented immigrants to children of enemies. However, it would uphold Wong Kim Ark and find that birthright citizenship extends to today’s undocumented immigrants because they are not enemies of the United States nor have they invaded parts of the country.
A second argument the President might employ involves the language “and subject to the jurisdiction thereof” in Section I of the Fourteenth Amendment. This phrase would likewise distinguish children of legal immigrants from children of undocumented immigrants since, some argue, the latter are not subject to the jurisdiction of the United States because they are here illegally. However, Supreme Court precedent would again derail such an argument. Plyler v. Doe, expanding on Yick Wo v. Hopkins, held “that ‘all persons within the territory of the United States,’ includ[e] aliens unlawfully present.” If territorial presence does not include jurisdiction, then the authority of jurisdiction would have a definition independent of territory. Yet, jurisdiction is found where an individual resides and/or where an incident occurred – both of which relies on territory. Again, this argument would fall flat.
Finally, President Trump may rely on Wong Kim Ark’s language that children of non-citizens who are “domiciled within the United States” are U.S. citizens. The only sliver of an argument the President has in this regard is to make the distinction between non-citizens immigrants with permanent residence and those without. The President would have to differentiate “domicile” from physical existence and physical presence from continued presence. Even if successful, the President would still not have the ability to end all birthright citizenship, even for children of undocumented immigrants because of the actual text of the Fourteenth Amendment. Fidelity to the text of the Constitution would require the Court to find that the Fourteenth Amendment does not include any carveouts for the children of non-citizens with permanent versus non-permanent residence. No matter which of the three arguments the President relies on, it seems unlikely he would be successful.
The President would have the ability to achieve his goal if he supported the extremely difficult and potentially unpopular path of passing a new constitutional amendment. The new amendment would repeal Section I of the Fourteen Amendment with a new amendment that allows birthright citizenship to only apply to children of documented immigrants and/or those with permanent residence. A new amendment could be even stricter, requiring citizenship via jus sanguinis citizenship, (i.e., citizenship by blood), as is the case in nearly all countries in the Eastern Hemisphere. The difficulty would further lie in three-fourths of the states (38) ratifying it after two-thirds of the Senate and House of Representatives pass the new amendment or two-thirds of states have called a convention. With extremely narrow margins in Congress being the newly-normal political climate and with State legislatures being as politically divided as the country as a whole, passing a new amendment would be nearly impossible.
Regardless of the successes or failures of his arguments on ending birthright citizenship, President Trump will argue for wide latitude in immigration affairs as a whole. This time, his arguments would be bolstered by existing caselaw stemming from the Chinese Exclusion Act of 1882, which banned Chinese laborers from entering the United States for ten years. The Chinese Exclusion Act reached the Supreme Court in Chae Chan Ping v. United States, where, in 1889, the Court’s majority declared:
to preserve its independence… [t]he power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States . . . the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one . . . If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.
Accordingly, Chae Chan Ping held that Congress has the right to regulate immigration.
Furthermore, the majority in Chae Chan Ping stated, “[i]t matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us” (emphasis added). President Trump’s “invasion” language might fall under “vast hordes of its people crowding upon us,” granting him power to curtail immigration – though not birthright citizenship. Unfortunately for his plans, the above-referenced section of the majority gives wide latitude to the “legislative department,” not the executive. However, the Republican party has control of the 119th Congress, which means the President’s immigration plan can be successful, though unlikely through executive order.
While Chae Chen Ping was a result of the racist, and now-defunct, Chinese Exclusion Act of 1882, the case has never been overruled, granting wide access to immigration matters of which President Trump would take advantage. Donald Trump ran on an anti-immigration platform in all three of his presidential campaigns, including a promise in 2016 to build a wall across the Southern border, for which Mexico would pay. The rhetoric grew more intense in 2024 with promises of mass deportation. With a conservative supermajority on the Supreme Court, President Trump might hope the Justices would find that immigration caselaw is ripe for change and give him even wider latitude, instead of keeping the power with the legislative branch. Immigration has always been a hot-button issue. The only difference is who those immigrants have been. President Trump’s current plans are similar to the Chinese Exclusion Act of old, though they target Hispanic and Latin American immigrants.
Regardless of the battles ahead, President Trump should remember the warning in Wong Kim Ark: “[w]hatever considerations . . . might influence the . . . executive branch of the Government to decline to admit persons of [another] race to the status of citizens of the United States, there are none that can constrain . . . the peremptory and explicit language of the Fourteenth Amendment. . .” Ending birthright citizenship and huge immigration overhauls through executive orders are promises the 47th President would not be able to keep.
Nazo Demirdjian is a family law attorney based in Las Vegas, Nevada. He earned his Juris Doctorate from UNLV's William S. Boyd School of Law, his master's degree from the University of Chicago, and his bachelor's degree from the University of California, Berkeley.