Former President Trump is repeating his calls to remove birthright citizenship, with his 2024 White House campaign announcing Tuesday he would seek to axe it via executive order on the first day of his second term, if elected.
Trump announced his pledge on the 125th anniversary of United States v. Wong Kim Ark, the Supreme Court case that established the constitutional right to birthright citizenship within the Fourteenth Amendment to the Constitution. The Fourteenth Amendment grants citizenship to anyone “born or naturalized in the United States” and guarantees them “equal protection under the laws.”
“As part of my plan to secure the border, on day one of my new term in office, 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 in a video posted on his Truth Social platform.
In the eyes of pretty much every serious legal expert, the president does not have the power to overturn a constitutional amendment unilaterally; the consensus is that you can’t suddenly stop applying that part of the law.
Even conservative legal minds, like Trump-appointed Judge James C. Ho, argue: “Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” he wrote in a 2011 op-ed for the Wall Street Journal.
If Trump wins and goes through with his executive order, it will be immediately challenged in court, and there’s a solid chance it may not even make it to the Supreme Court. And even if it does, the six conservative justices probably won’t take the bait. To get rid of birthright citizenship, Trump has to jump through the obstacle course that is the constitutional amendment process.