A battle between the president and the Constitution over immigration
On Jan. 20, 2025, the day that Trump took office, he signed an executive order targeting birthright citizenship titled, “Protecting the Meaning and Value of American Citizenship.” The order sparked lawsuits from 22 states, including some that Trump won in 2024.
Currently, the order is blocked by federal judges. Otherwise, it would have taken effect on Thursday, Feb. 20. The judges justified their actions by claiming that Trump’s actions were unconstitutional. But were they actually?
To understand the essence of the question, a few things need to be understood within America’s history.
The 14th 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.”
This Amendment was ratified in 1868 as part of the Reconstruction Era after the Civil War. It rightly reversed the 1857 Dred Scott Supreme Court decision, which had ruled that enslaved persons were not citizens of the United States.
The 14th Amendment was revisited in the 1898 Supreme Court case, U.S. v. Wong Kim Ark. Wong, who had been born in California to Chinese citizens residing there at the time, was denied re-entry into the United States after visiting his parents in China on grounds that he was not an American citizen.
The Court ruled in favor of Wong. “The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
I highly recommend reading the majority opinion of the court for this case for a full understanding.It should be noted that this ruling had been made at a time when there was much anti-Chinese sentiment within the United States. This is shown through the Chinese Exclusion Act of 1882 and the common violence and discrimination enacted against Chinese.
This brings us back to Trump’s executive order. It claims that the 14th Amendment was never interpreted to “extend citizenship universally to everyone born within the United States. The 14th Amendment has always excluded [those] who were born in the United States but not ‘subject to the jurisdiction thereof.’” U.S. v. Wong Kim Ark agrees with this, but not to the extent that Trump interprets it to mean. Its ruling would only deny citizenship to “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State,” neither of which are applicable to most illegal migrants today.
Trump’s order makes two qualifications for when a child is born not under the jurisdiction of 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 and the father was not a United States citizen or lawful permanent resident.” Lawful but temporary can mean a student, work or tourist visa.
Importantly, it must be noted that the qualification necessitates both parents to meet the above criteria in order for the children not be granted birthright citizenship. For example, if a baby’s mother was unlawfully present at the time, but the father was a legal United States citizen, the child is still granted citizenship.
To be certain, this order does not apply to anybody already born in the United States to illegal immigrants. The order would only apply to persons born in the United States after 30 days of the order’s signing.
In any case, whatever position one holds on birthright citizenship, it must be stated unequivocally that Trump’s order was de facto unconstitutional. It ordered that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” of such persons that do not qualify for birthright citizenship according to their definitions.
The president cannot unilaterally repeal an amendment– that privilege belongs to Congress and the states.
To be clear, Trump did not repeal the amendment in the orthodox sense. However, his order necessitated that the federal government treat it as such and act in effect to it.
Now it is likely that Trump’s order will have to face the Supreme Court’s scrutiny. Four federal judges have blocked Trump’s order, two of which were appointed by Republican presidents. Just recently, the 9th Circuit Court of Appeals rejected Trump’s emergency bid to unblock his order.
How the Supreme Court will rule remains to be seen, but the track record of the court justices in upholding the constitution in its plainest, historical and nonpartisan meaning gives me faith that, regardless of their immigration positions, they would agree that the actions of one president cannot undermine the standing laws of the country.
Justin Yang is a freshman at UD.