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President-elect Donald Trump has vowed to end birthright citizenship on Day 1 of his second term, but scholars say that may be nearly impossible.
In a wide-ranging interview with NBC's "Meet the Press" that aired Sunday, Trump was asked if he planned to follow-up on his promise to end birthright citizenship – under which people born in the U.S. are considered citizens – the day he takes office.
"Absolutely," he responded, adding that he’ll do it by executive order if he can.
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Asked how he would circumvent the 14th Amendment, Trump said "we’re going to have to get a change."
"We’ll maybe have to go back to the people, but we have to end it," he said.
Moderator Kristen Welker Interviews President-Elect Donald Trump on Sunday, Dec. 8, 2024. (Photo by: Peter Kramer/NBC via Getty Images)
Trump also incorrectly stated that the U.S. is the only country in the world with birthright citizenship. That’s not true. The U.S. and Canada are the only two G7 countries that offer it, and several other countries offer it in some form.
It’s not the first time Trump has proposed ending it – he floated the idea in 2018. He said Sunday that he had planned to take executive action on birthright citizenship in his first term, but the COVID-19 pandemic took precedence.
What the 14th Amendment says
The 14th Amendment was ratified after the Civil War to secure U.S. citizenship for newly freed black slaves. It later was used to guarantee citizenship to all babies born on U.S. soil after court challenges.
The citizenship clauses of the 14th Amendment states:
"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."
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The second sentence contains two of the most important clauses in the Constitution, the due process and equal protection clauses. They apply to everyone in the U.S., not just citizens:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Can Trump end birthright citizenship by executive order?
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Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, told CNN that ending birthright citizenship in the U.S. is nearly impossible without a constitutional amendment.
Congress can launch the constitutional amendment process and then send it to the states for ratification. But such a resolution takes a two-thirds vote in both the House and Senate, which is highly unlikely at this time of divided government, and ratification by three-fourths of the states.
So far, there have been 27 amendments to the U.S. Constitution.
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Geoffrey Hoffman, director of the Immigration Clinic at the University of Houston Law Center, said in 2018 some proponents of immigration restrictions have argued the words "subject to the jurisdiction thereof" in the 14th Amendment allows the U.S. to deny citizenship to babies born to those in the country illegally.
However, Hoffman said those arguments are false since any person in the U.S., besides diplomats, would be subject to U.S. laws regardless of immigration status.
Any executive order by Trump or any president could be subjected to a judicial challenge and there are many articles in the Constitution that would make a fight against the Citizenship Clause difficult.
Besides the 14th Amendment itself, Hoffman said an executive order banning the Citizenship Clause would violate Article 2 of the Constitution, which states the president "shall take Care that the Laws be faithfully executed."
Hoffman said such an executive order would violate laws of denaturalization and would attempt to strip citizenship retroactively — another violation of the Constitution.