Birthright Citizenship and why it is not so easy to end?
Donald Trump's executive order proposing to ban birthright citizenship is unconstitutional because of its direct violation of the 14th Amendment. Executive Orders are not the appropriate mechanism for changing constitutionally enshrined rights.
An executive order is a directive by the office of the President. Article II Section I Clause 1 of the United States Constitution is the source of Executive authority. Executive authority, like Congress and the Judiciary, has powers and limitations. Notable executive orders from the good to the bad were President Lincoln's executive order issuing the Emancipation Proclamation; President Biden issued an executive order requiring every federal government agency to do what was possible to ensure voter registration. President Roosevelt authorized internment camps for Japanese American citizens via executive order. Another function of executive orders is to ensure that federal government agencies implement the laws effectively. Executive Orders implement already existing laws. However, Executive Orders cannot change the Constitution.
The 14th Amendment was ratified in 1868 to grant citizenship to formerly enslaved people, but its provisions apply to anyone born on U.S. soil. The most relevant part of the Amendment in this case is the Citizenship Clause, which 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."
This has been interpreted by courts, including the Supreme Court, to mean that anyone born on U.S. soil (with a few exceptions, such as children of foreign diplomats or hostile forces) automatically acquires U.S. citizenship, regardless of their parent's immigration status.
The 14th Amendment guarantees birthright citizenship. For the past 150 years, the interpretation of the 14th Amendment is that people born on U.S. soil are United States citizens. The famous case that held that those born to non-citizen parents on U.S. soil were citizens of the United States was United States v. Wong Kim Ark. In that case, Wong Kim Ark was born in the United States to Chinese parents who were not citizens of the United States of America. The parents eventually moved back to China. Wong Kim Ark left the United States to visit his parents. Upon returning , he was not allowed to enter the country because he did not have United States citizenship. Ark sued and won successfully under the interpretation of the language of the 14th Amendment of the United States of America, that all people born in the United States are citizens.
President Trump's executive order ending birthright citizenship was swiftly challenged by twenty-two states, with preliminary injunctions ordered from federal district courts country-wide. Citizenship via birth is a cornerstone of American democracy. The 14th Amendment ensures that stateless children are not born. Moreover, the 14th Amendment at its core is a solution to our nation's sordid mistake of slavery. It was the marking of America growing into a country that, at least on paper, accepted and welcomed people from all backgrounds and would give them the chance at opportunity and growth.