Inside the Trump team’s plans to try to end birthright citizenship
Washington (CNN) — President-elect Donald Trump’s team is assessing multiple options to fulfill his long-promised pledge to end birthright citizenship, according to two sources familiar with the discussions, teeing up a legal fight with the expectation that the Supreme Court would ultimately have to rule on the matter.
Trump has railed against birthright citizenship, which is protected by the 14th Amendment, for years and suggested he’d use executive action to ban it.
“We’re gonna have to get it changed, or maybe I would go back to the people, but we have to end it. We’re the only country that has it,” Trump told NBC’s Kristen Welker, echoing a false statement he’s made in the past. “If we can, through executive action. I was going to do it through executive action, but then we had to fix COVID first, to be honest with you.”
In private, his allies have been crafting strategies to do that, including directing the State Department not to issue passports to children with undocumented parents and tightening requirements for tourist visas to crack down on “birth tourism,” according to two sources familiar with the planning.
Multiple options are being kicked around among Trump allies to tighten the interpretation, keenly aware that any action would likely be legally challenged and eventually land before the Supreme Court.
“Something has to kick off the legal battle,” one of the sources told CNN.
The Trump transition team pointed to Trump’s comments to Welker when asked for comment.
Trump allies argue that the 14th Amendment has been misinterpreted and doesn’t apply to children born in the United States to undocumented parents. Some immigration hardliners have argued that children of undocumented immigrants are not “subject to the jurisdiction” of the United States and shouldn’t be considered citizens under the Constitution.
About three dozen countries provide automatic citizenship to people born on their soil, including U.S. neighbors Canada and Mexico and most South American countries. There are about 4.4 million U.S.-born children under 18 who live with an undocumented parent, according to the Pew Research Center.
“This isn’t a barn-burning emergency. This doesn’t have to be done and completed and set in stone in year one. They know they’re going to the Supreme Court with it, and they’ll methodically make their case,” said another source familiar.
A legal fight would be inevitable, but getting the Supreme Court to take up such a challenge is not a guarantee, and the high court will be less inclined to do so if there is no disagreement among the circuits about the meaning of birthright citizenship.
But if the Trump administration brings the dispute to the court’s emergency docket, asking for the high court to pause a lower court order blocking the policy, the justices will have to take some sort of action. If the Supreme Court does take up a full review of the case, it could also duck the central constitutional questions by ruling against Trump based on the statute guaranteeing birthright citizenship instead.
“I don’t think it’s likely, but it’s an offramp if they wanted it,” said Steve Vladeck, a CNN legal analyst and professor at the Georgetown University Law Center.
The strategizing by the Trump team to try to end birthright citizenship has been matched by the preparations made by those who would challenge the move in court.
“We expect to sue, and others will as well,” said Cody Wofsy, the deputy director of the ACLU Immigrants’ Rights Project. “We have been very focused on what we’re going to do in this scenario, and we’re ready to go.”
Supporting the case for affirming birthright citizenship is in both the Constitution’s 14th Amendment, which says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” and in a similar statute with origins that predate the constitutional provision.
Longstanding Supreme Court precedents are also a major hurdle for the incoming Trump administration. An 1898 Supreme Court ruling upheld the amendment’s application to those born on U.S. soil whose parents are noncitizens, while a 1982 case made clear that the amendment also applied to children who were born to undocumented immigrants.
“The history is clear. The constitutional text here is clear. The longstanding precedent is clear,” Wofsy said. “So, we are confident that, at the end of the day, the Constitution will prevail and people who are born here will continue to be recognized as U.S. citizens.”
Democratic attorneys general are eager to get into the fight as well.
New Jersey Attorney General Matthew Platkin pointed to how the proposal could affect his wife, a daughter of Chinese immigrants who was born in Philadelphia.
California Attorney General Rob Bonta said Trump’s arguments for ending the right were “typical outlier extremist type of argument” that “won’t fly.”
“We are definitely going to be suing him in court if there’s an attempt to deport U.S. citizens,” he told CNN.
Legal experts remain confident that birthright citizenship will remain even with a right-leaning Supreme Court that has shown willingness to overturn longstanding precedents on other issues, such as on abortion rights or regulatory power.
Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s School of Law, said a Supreme Court reversal of the 1898 birthright citizenship ruling would be “quite different” and “far more radical” than how the conservative majority has overturned other precedents like Roe v. Wade.
“It really goes to how the nation sees itself and how it defines itself as a democracy,” Motomura told CNN. “The 14th Amendment and its interpretation comes out of history of being a nation and recognizing that to populate the nation and to settle the nation, you needed to give membership to people who were born in this country.”
The-CNN-Wire
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