Trump wants to deny automatic citizenship to children born in the U.S.

A few hours after being sworn in on January 20, U.S. President Donald Trump signed a series of executive orders to fulfill his campaign promises. Among them was an order that prohibits automatic citizenship for those born in the United States.

Titled “Protecting the Meaning and Value of American Citizenship,” Trump’s executive order opposes granting citizenship to babies born in the U.S. to parents who are neither citizens nor lawful permanent residents.

The executive order, which takes effect after 30 days, specifically on February 19, could affect tens of thousands of children born annually in the U.S. to parents without legal status, including children of people granted asylum but not yet permanent residents, as well as those born to foreign nationals with long-term work permits, such as the H-1B visa.

Human rights groups, who anticipated Trump’s measure, filed lawsuits in federal court to block the order from taking effect. According to them, the move is cruel and against the values that the U.S. represents.

Around 22 states led by Democrats, along with the District of Columbia and the city of San Francisco, also filed lawsuits.

Jayesh Rathod, a law professor and director of the Immigrant Justice Clinic at American University’s Washington College of Law, told Radio Free Europe that the matter could reach the Supreme Court.

“I think the issue is shaping into a test case that will pass through the federal courts. I wouldn’t be surprised if the Supreme Court reviews it,” Rathod said.

The 14th Amendment to the U.S. Constitution—ratified in 1868, three years after the abolition of slavery—states that “all persons born or naturalized in the United States and subject to its jurisdiction, are citizens of the United States and of the state wherein they reside.”

This amendment overturned an 1857 Supreme Court decision that declared African Americans were not U.S. citizens due to their race.

The current interpretation of the 14th Amendment, which guarantees citizenship to anyone born in the U.S. except children of diplomats, stems from an 1898 lawsuit brought by Wong Kim Ark, born in San Francisco to lawful Chinese immigrants. After traveling to China, Ark was denied re-entry to the U.S. on the grounds that he was not a citizen. He sued, arguing he was a citizen under the 14th Amendment, and the Supreme Court ruled in his favor, setting a precedent.

Over the years, this law has been exploited, particularly by wealthy citizens of unstable or repressive foreign countries who sent their spouses or partners to the U.S. on tourist visas to give birth, ensuring their children automatically gained U.S. citizenship. This practice became so widespread it was dubbed “birth tourism.”

The Center for Immigration Studies, a research organization advocating immigration restrictions, estimated that between mid-2016 and mid-2017, 33,000 children were born in the U.S. to foreign women with tourist visas. After obtaining the child’s passport, these women typically returned to their home countries to raise their children.

In January 2019, during Trump’s first term, U.S. prosecutors filed the first federal charges against operators of a “birth tourism” business. In that case, 19 people were indicted for running a scheme that charged Chinese citizens tens of thousands of dollars to give birth in California. That same year, the Associated Press reported that hundreds of pregnant Russian women travel to Florida each year to give birth.

Parents can obtain U.S. citizenship when their children become adults. American citizenship is highly coveted due to the opportunities the country offers. Additionally, U.S. passport holders can receive support from local U.S. embassies in case of arrest or other crises in their home countries.

However, “birth tourism” accounts for only a fraction of babies born to non-citizens in the U.S. Others include those seeking asylum or applying for citizenship.

Trump, who centered his presidential campaign on anti-immigration policies, criticized automatic American citizenship for babies born to foreign nationals even during his first term but did not take any legal action. Experts say that Trump, new to politics when he won the 2016 election, has carefully planned the controversial legislation over the past four years, anticipating a potential return to the White House.

The Trump administration is focusing on six words from the 14th Amendment, claiming they exclude birthright citizenship for children of parents who are neither lawful permanent residents nor citizens.

“The 14th Amendment has never been interpreted to universally extend citizenship to anyone born within the United States. The 14th Amendment has always excluded from birthright citizenship persons born in the United States who are not ‘subject to its jurisdiction,’” the administration said in a statement released on January 20.

Trump’s executive order specifically denies citizenship to babies born to mothers who are in the U.S. illegally and fathers who are neither U.S. citizens nor lawful permanent residents. It also denies citizenship to babies born to mothers who are lawfully in the U.S. but temporarily—whether on tourist, work, or student visas—and fathers who are neither U.S. citizens nor lawful permanent residents.

The American Civil Liberties Union (ACLU) and other immigrant rights groups immediately filed lawsuits, denouncing the executive order as unconstitutional and inhumane.

“Birthright citizenship is guaranteed by our Constitution and is absolutely essential to what America represents,” said Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney in the case.

“Denying citizenship to babies born on U.S. soil is unlawful, deeply cruel, and contrary to our values as a nation,” he added.

In a joint statement, immigrant rights groups warned that Trump’s order could potentially endanger the lives of babies and create a permanent underclass of people in the U.S. According to them, such children could be denied basic healthcare services at a critical stage in their lives.

“The order will also stigmatize and send a message of exclusion not only to the children directly affected by it but also to many others whose citizenship might be questioned due to their race or their parents. Excluding people born here will also create a permanent underclass of those who have never been in another country and could remain stateless,” the statement said.

While lawmakers have periodically introduced legislation to end universal birthright citizenship, Rathod noted that Trump’s challenge to the interpretation of the 14th Amendment might be the first from the White House.

Arguments for narrowing the scope of the Amendment have circulated in conservative circles for decades but are now gaining traction amidst rising anti-immigration sentiment and a right-leaning Supreme Court, Rathod said.

“The administration is leveraging these arguments because it believes there is an opportunity to change the law,” he added.

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