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Preparing for the Trumpocalpyse: Is “Birthright Citizenship” Safe?

Candidate Trump’s website contains the following promise if he is elected:

End birthright citizenship. This remains the biggest magnet for illegal immigration.  By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said “no sane country” would give automatic citizenship to the children of illegal immigrants. 

By “birthright citizenship,” Trump is referring to the fact that people born in the United States automatically become U.S. citizens.  Candidate Trump is vowing to stop this practice.  Could President Trump actually do it?

Question:  Could President Trump end “birthright citizenship”? 

Answer:  No.  It’s in the Constitution.

“Birthright citizenship” is guaranteed by the 14th Amendment to the U.S. Constitution, which states that “[a]ll 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.”  This principle is known as “jus soli,” meaning literally “law of the soil.”  While this part of the Constitution was originally enacted to ensure that freed slaves were considered U.S. citizens after the Civil War, it has been held consistently since the 19th century to apply to all persons born in the United States.  In 1898, the Supreme Court considered the case of Wong Kim Ark, who was born in California to Chinese parents.  Mr. Wong traveled to China, and upon return was denied entry to the United States on the theory that he was not a U.S. citizen because his parents were not citizens.  By ruling in Mr. Wong’s favor, the Supreme Court clarified that the “birthright citizenship” language of the 14th Amendment applies generally, and it has been held ever since to apply to almost everyone born on U.S. soil (with the potential exception of children of foreign diplomats who have immunity from U.S. laws).

So, President Trump would have no power to change “birthright citizenship.”  It could be ended by a change to the Constitution, as could any other protection guaranteed by that document (for example, free speech, the right to bear arms, or the right to a jury trial).  However, Presidents have no authority to change the Constitution.  In fact, all Presidents (including a possible President Trump) swear an oath to “preserve, protect, and defend the Constitution of the United States.”  President Trump would be bound by that oath regardless of personal opinion or campaign promise.