By Reece Tibey 
Photo Credit: The Independent
One of President Trump’s key campaign promises was to be tougher on immigration policy than President Biden. In addition to promises of mass deportations, President Trump signed an executive order on his first day in office changing the federal government’s interpretation of the 14th Amendment. The change involved no longer allowing citizenship for children of illegal immigrants born in the United States, commonly known as “birthright citizenship.” A widespread legal battle is already ensuing, as some Democrats have filed lawsuits in several jurisdictions.
Section 1 of 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.”
Trump’s executive order pertains to the meaning of the phrase “subject to the jurisdiction thereof.” The 1898 Supreme Court case US v. Wong Kim Ark affirmed that all children born to permanent residents have American citizenship. The Court has never faced the question of whether this applies to children whose parents may reside in the US illegally. Until President Trump’s executive order, they were given this right without an explicit determination by the Court.
As a result of legal challenges to President Trump’s executive order, federal courts will answer this question soon. The Trump Administration will likely use claims about the original purpose of the 14th Amendment as part of its argument that citizenship rights do not pertain to children of illegal immigrants.
The legal issue of birthright citizenship has been debated since the 19th century. Supporters of the Trump Administration have been adamant about reviewing the historical context of the 14th Amendment. In 1857, the Supreme Court ruled in Dred Scott v. Sandford that enslaved people were not given standing to sue in court because they were not U.S. citizens. When it was ratified in 1868, the 14th Amendment superseded the ruling in Dred Scott and gave citizenship to formerly enslaved people. President Trump himself has professed a narrow interpretation of the 14th Amendment, saying that it was passed with the primary purpose of giving rights to formerly enslaved people and should not be applied to modern-day immigration. The 14th Amendment was influenced by an opinion written by President Lincoln’s first Attorney General, Edward Bates, in which he stated that “allegiance” to a country’s laws was a requirement of citizenship. The same terminology appeared again in the Wong Kim Ark decision; “jurisdiction” was defined as being “within the allegiance of the sovereign.”
This leads to the question that the attorney’s of the Trump Administration will ask the Supreme Court: Can a person pledge allegiance to a country’s laws if they are in that country unlawfully? Critics have already taken legal action against the executive order with 22 states already suing to block it. New Jersey Attorney General Matt Platkin stated, “The president cannot, with a stroke of a pen, write the 14th Amendment out of existence, period.” Injunctions have been issued by several federal judges already. Judge John Coughenour, appointed by President Reagan, said the executive order was “blatantly unconstitutional.” Due to widespread legal disagreement across multiple jurisdictions, the case is likely to end up being decided in the U.S. Supreme Court in which there is a majority of justices appointed by Republican presidents, with three being appointed by President Trump himself.
President Trump’s executive order on birthright citizenship comes as part of a larger crackdown on immigration as he aims to “Make America Safe Again.” In addition to signing his executive order entitled “Protecting the Meaning and Value of American Citizenship,” President Trump has deployed the military to the southern border, resumed construction of the border wall, and reinstated the “Remain in Mexico” policy which requires asylum seekers to stay in Mexico while their cases are processed. He has also designated several Mexican cartels as terrorist organizations and initiated what he calls “the largest deportation operation in American history.” Each of these efforts contribute to President Trump’s overall immigration agenda so the ultimate judicial interpretation of the 14th Amendment will have an important impact on his plan.