Q&A – Breaking Down President Trump’s Birthright Citizenship Order

Q&A of the Day – Breaking Down President Trump’s Birthright Citizenship Order 

Each day I feature a listener question sent by one of these methods.      

Email: brianmudd@iheartmedia.com     

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Today’s Entry: @brianmuddradio Will @realDonaldTrump’s eo on birthright citizenship stand up to legal challenges? 

Bottom Line: As promised, among President Trump’s 26 Day 1 executive orders was his directive on what’s referred to as birthright citizenship, or that any person born within the United States of America is automatically an American citizen. At issue has been the perceived abuse of ‘birthright citizenship’ by those lacking legal status. Commonly non-citizens/illegal immigrants have entered the United States for the purpose of having children that would serve a dual purpose. Not only would their children be American citizens, but in theory the children would insulate the parents lacking legal status from deportation and enable them to receive federal assistance programs to care for their children. At issue is the 14th Amendment’s Citizenship Clause.  

  • The Clause 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. 

It’s a declarative statement that to date has withstood previous legal challenges. So, about the new challenge presented by President Trump to the way in which it’s been used and interpreted for parents of children who lack legal status. Trump’s executive order is entitled: Protecting the Meaning and Value of American Citizenship. In the order it’s stated:  

  • The Fourteenth 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." That provision rightly repudiated the Supreme Court of the United States's shameful decision in Dred Scott v. Sandford, which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not "subject to the jurisdiction thereof." 

So, the executive order is clearly written for the purpose of steering anticipated legal challenges to President Trump’s constitutional interpretation. The argument is that the language “jurisdiction thereof” invalidates the children of those lacking legal status of citizenship as they aren’t lawfully within a jurisdiction thereof. While it’s a contentious issue with significant implications, it’s a straightforward argument that’s been framed for courts, potentially if not likely, the United States Supreme Court.  

As for the specific exclusions sought by the Trump administration, the order goes on to say: 

  • Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person's mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person's birth, or (2) when that person's mother's presence in the United States at the time of said person's birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person's birth. 

Notably, the order isn't as restrictive as it could have been. As cited, if only one of either the father or mother is a lawful permanent resident or citizen the order wouldn’t apply. That considerable olive branch may be extended in part to provide the judicial system additional room to rule in favor of the directive when the time comes. For example, in the court of public opinion, it’s likely most Americans would think that at least one parent should retain legal status within this country in order for their children to become citizens.  

As for whether this executive order will withstand legal challenges... Already the ACLU and 22 states have sued the Trump administration over this executive order. This will be a battle royale. I believe the approach by President Trump is both reasonable and well-presented providing it with the best chance of obtaining legal success. At the same time the battle is likely of the uphill variety. If this were a new issue it would be a lot easier for a court to side with Trump’s legal argument. An overarching issue, should a court rule in Trump’s favor, would be how to address those who’ve already been granted birthright citizenship. Courts often lean on precedent in controversial rulings. The established precedent is the status quo.  

First things first. We’ll need to see how the Trump administration roles out the implementation of this order which is also what will prompt subsequent legal challenges. We’ll see how this plays out. Regardless of how a court rules however, it’s principally absurd for someone to retain American citizenship under constitutional law if both of their parents were breaking our laws by being here at the time of their birth. That’s rewarding bad behavior. 


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