Trump Is Coming for Birthright Citizenship

The Republican presidential nominee wants to wipe away the 156-year-old guarantee that if you’re born here, you’re American. Don’t think he can’t.

By Anne Kim

Under current law, birthright citizenship is an entitlement. Anyone born on the soil of the United States, or its territories is automatically a U.S. citizen, regardless of their parents’ immigration status.

Senator Lindsey Graham, the South Carolina Republican, has proposed ending this cornerstone of American law and history. And lest you think this to be one more crazy bill with no shot of passage, imagine the very real possibility of a Republican Congress and the return of President Donald Trump, who has vowed to end birthright citizenship. Graham’s proposal could potentially be law in four months.

Graham’s Birthright Citizenship Act of 2024, introduced last month, would confer citizenship by blood, not place of birth, and limit it to the children of U.S. citizens or nationals, permanent legal residents (i.e., people with “green cards”), or noncitizens serving in the military. Graham says it would end the “exploitation” of birthright citizenship as “a major pull factor for illegal immigration and a weakness for our national security.”

Conservative activists have campaigned against birthright citizenship for decades, so Graham’s proposal is not the first assault on this right. What’s changed is how fragile this historical doctrine could be if a guardrail-free Trump regained power.

Opinion polls find that a large share of Americans favor ending birthright citizenship. In an April 2024 poll by PRRI, for instance, 42 percent of Americans supported abolishing it—including 47 percent of whites, 39 percent of Blacks, and 29 percent of Hispanics. Likewise, in April, an Axios survey found 46 percent of Republicans—and 30 percent of Democrats—support ending birthright citizenship. (The same survey found that 51 percent of those surveyed support Trump’s plans for mass deportation of undocumented immigrants.)

Trump, for his part, has condemned birthright citizenship as a “reward for breaking the law” and a “magnet helping to draw the flood of illegals across our borders.” He has promised to abolish it via executive order (assuming Graham’s bill doesn’t get to his desk first).

The conservative Supreme Court has not shied from overturning long-established precedents. It could potentially welcome a challenge to the 1898 decision, United States v. Wong Kim Ark, which interpreted the 14^th Amendment, ratified in 1868, to guarantee birthright citizenship. An executive order or legislation to end birthright citizenship would make such a showdown inevitable.

In Wong Kim Ark, the Supreme Court ruled in favor of a young man born in the U.S. to Chinese laborers who had been barred from re-entering America after a brief trip to China. Customs officials argued that Wong wasn’t an American citizen because of his Chinese parents and was, therefore, subject to the Chinese Exclusion Act, banning the entry of Chinese workers. While his lawyers pleaded his case, Wong spent months in limbo, living on a boat near the port of San Francisco.

The Supreme Court held Wong to be a citizen under the 14^th Amendment, which provides that “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” While the 14^th Amendment was originally enacted to nullify the Court’s horrific ruling in Dred Scott v. Sandford, denying citizenship to Black Americans, the Court in Wong held the amendment to be even more inclusive.

“In clear words and in manifest intent,” wrote Justice Horace Gray, the 14^th Amendment extends the right of citizenship to all children “born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

First, the Court noted that birthright citizenship enjoys a long tradition under the English common law adopted by the states. The 14^th Amendment, the Court wrote, “affirms the ancient and fundamental rule of citizenship by birth within the territory.”

Moreover, the Court reasoned that the 14^th Amendment explicitly states that “all” persons born or naturalized in the United States are citizens and that “no distinction is intimated on account of race or color.” On the contrary, the Court wrote, the Amendment’s language “was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men.”

But the crux of the Court’s holding was its interpretation of the clause “and subject to the jurisdiction thereof.” This language, the Court held, was meant to preclude birthright citizenship for only a narrow set of individuals: children born to foreign diplomats, “children born of alien enemies in hostile occupation” (i.e., if the U.S. homeland were ever invaded); and the children of “members of the Indian tribes owing direct allegiance to their several tribes.” (Congress later passed legislation in 1924 conferring citizenship on native peoples.) In such rare instances, the Court ruled, these individuals are “subject to the jurisdiction” of their home countries (which is why ambassadors enjoy “diplomatic immunity”). All others on American soil are subject to U.S. jurisdiction, whether foreign or native-born. The Court wrote that ruling otherwise would “deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

Nevertheless, modern-day opponents of birthright citizenship have seized upon the “jurisdiction” clause to argue against the Supreme Court’s 126-year-old ruling.

Conservative organizations like the Heritage Foundation, for instance, have argued that “subject to the jurisdiction” means “ not owing allegiance to any other country.” To bolster their case, they rely upon the dissent of then-Chief Justice Melville Fuller, who argued that the jurisdiction clause excluded Wong’s claim to citizenship because his parents—though laborers, not diplomats—were still “the subjects of the Emperor of China” and “bound to him by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment.” Modern proponents of this reasoning also include Trump’s now-disbarred attorney, John Eastman, who claims a distinction between “territorial” jurisdiction and “political” jurisdiction and argues that the 14^th Amendment only intended the latter.

These arguments, however, are both illogical and weak. Anyone on U.S. soil is subject to the “jurisdiction” of the United States. They must obey U.S. laws and face prosecution for any crimes they commit (otherwise, every immigrant and tourist would enjoy diplomatic immunity).

Second, if “jurisdiction” actually does mean “allegiance,” as birthright opponents claim, asylum-seekers and refugees have arguably renounced any allegiance to their native land when they fled. As George F. Will has pointed out, “Allegiance to the United States can be assumed, and is generally high, among immigrants whose (often arduous and dangerous) journeys from other countries constitute renunciations of allegiance to those countries.”

Third, even if an immigrant retained some loyalty to their native country, their U.S.-born children don’t inherit that allegiance. As the constitutional scholar Christopher Eisgruber (now president of Princeton University) wrote in 1997, “A cardinal constitutional principle… prohibits imputing responsibility to children for their parents’ choices.” For instance, the Constitution’s prohibitions on titles of nobility “reflect that in the United States, responsibility and guilt are traced to individual action, not ancestral pedigree,” Eisgruber further writes. A parent’s illegal entry into the country does not mean their child is illegally born. (Washington Monthly Legal Affairs Editor Garrett Epps has also written about the topic here, here, and here.)

In addition to the explicit language of the 14^th Amendment, moral, civic, and practical considerations demand the preservation of birthright citizenship. It imbues Americans with an indelible stake in their homeland and, as Eisgruber writes, cements the contract of reciprocity between a government and its people. “When the United States uses its sovereign power to organize residents’ lives for the common benefit, the people subject to that power deserve a fair share of the benefits that result from the collective enterprise in which they participate,” he writes.

Eliminating birthright citizenship would also create immense bureaucratic complexity and potential for error. All parents, for instance, would need to prove their citizenship when a child is born to guarantee their child’s legal status. For immigrant parents whose paperwork is pending, their children’s fate could rest on the vagaries of processing times, which vary wildly by months and sometimes years. My South Korean-born parents, for instance, got their green cards three months before I was born. Without birthright citizenship, one snafu and resulting delay could have made me a non-citizen.

For the children of non-citizens, their birth into “statelessness” would mean bureaucratic limbo, ineligibility for government benefits, and precarious access to fundamental rights like education, which is guaranteed in most state constitutions. “Denying citizenship to children born on U.S. soil would create an underclass of citizens subject to constitutionally sanctioned discrimination and social exclusion,” as Bruce Lesley, the president of First Focus on Children, wrote in March.

More importantly, the end of birthright citizenship would mean the rejection of America’s highest founding ideals of inclusion, equality, and opportunity for all—and the embrace of nativism’s lowest and ugliest sentiments. It’s not hard to see the parallels between conferring citizenship by blood, as the opponents of birthright citizenship want, and the “racial purity” demanded by white nationalism’s adherents. Legalistic parsing of the word “jurisdiction” can’t hide the xenophobia animating birthright citizenship’s critics.

A robust debate about immigration is perfectly appropriate in a nation that millions seek as a refuge and potential home, as is a national conversation about managing the flow of migrants and providing security at our points of entry. But to seek the end of birthright citizenship has nothing to do with immigration reform or border security. Rather, it’s about denying the right to be “American”—in defiance of longstanding American values. Denying citizenship to children born on U.S. soil would leave us unworthy of the American identity we claim.

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