Things That Matter

Trump Administration Plans To End Birthright Citizenship And They Say A Constitutional Amendment Isn’t Necessary

The acting United States Citizenship and Immigration Services director Ken Cuccinelli told the Christian Science Monitor, at a breakfast they hosted, that he believes a constitutional amendment isn’t required to end birthright citizenship. When Newsweek tried to corroborate this claim with constitutional law experts, they disagreed. 

“Yes, it would require a constitutional amendment, and almost everyone else working on this topic would agree,” Ian Bartrum, a law professor at University of Nevada, Las Vegas told Newsweek.

However, threats to end birthright citizenship — as stated in the 14th amendment that anyone born in the U.S. is a citizen — should not be taken lightly. Amanda Frost, a professor at American University’s Washington College of Law, penned an op-ed for the Atlantic which claims citizenship is in a fragile state due to an onslaught of the Trump Administration’s policies. 

Is an end of birthright citizenship coming? Ken Cuccinelli certainly hopes so.

“I do not think you need an amendment to the Constitution. I think the question is do you need congressional action or can the executive act on their own,” Cuccinelli told the Christian Science Monitor. 

Cuccinelli was echoing the hope of President Trump who stated in August that he was considering ending birthright citizenship “very seriously.” 

“Where you have a baby on our land, you walk over the border, have a baby,-congratulations, the baby is now a US citizen…It’s frankly ridiculous,” Trump said. 

As early as October 2018, Trump alleged he would use an executive order to end it, however then-Speaker of the House Paul Ryan dismissed Trump’s claims as legally impossible because “the Fourteenth Amendment is pretty clear.” 

Why do we need a new constitutional amendment to end birthright citizenship?

The Fourteenth Amendment, ratified in 1868 states clearly, “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.”Meaning anyone born in the U.S. (regardless of their parent’s status) or anyone who goes through the legal process of becoming naturalized is a citizen of the United States. Constitutional Amendments are the legal foundation of our government, changing them is not so easy. In order to repeal an old one, a new one is necessary. For example, the Twenty-First Amendment in 1933 was ratified to repeal the Eighteenth Amendment, which prohibited alcohol. 
To pass a new amendment would require three-fourths of states (34 states) to ratify the amendment and make it law. Thus, many have dismissed the idea that ending birthright citizenship would ever be possible — 34 states would never agree. This is why Cuccinelli’s statements have experts and advocates vexxed. 

Can we end birthright citizenship through congressional action like Cuccinelli says? 

One can only speculate if Cuccinelli is referring to the process of proposing an amendment that would require a two-thirds majority in Congress but this method would still necessitate ratification by 34 states and would still be an amendment. It is unclear what method of congressional action or executive action would result in ending birthright citizenship. 

The Daily Beast reported that in 2008, Cuccinelli urged congress to call a constitutional convention to amend the 14th Amendment of the U.S. Constitution, “to clarify specifically that a person born to a parent who is a U. S. citizen is also a citizen of the United States,” in order to exclude children born to undocumented parents.

As Newsweek notes, “[Law professor] Bartrum mentioned that the 14th Amendment was created to overturn the Dred Scott case, which allowed states to deny citizenship to the descendants of former and freed slaves. He noted that overturning that amendment would be questionable.”

Nevertheless, birthright citizenship is still in a precarious position as threats mount against it.

In “The Fragility of American Citizenship,” Amanda Frost highlights that the Trump administration has chipped away at the premise that all you would need to prove that you’re a citizen is a birth or naturalization certificate. The Trump administration has created a denaturalization team dedicated to investigating 700,000 naturalized citizens. 

One man, Baljinder Singh, had his citizenship revoked under the Trump administration, despite being naturalized and living here for three decades because a government official spelled his first name incorrectly when he arrived in the United States as a teenager. Birthright citizens are being attacked too. 

“Take, for example, retired Marine Gunnery Sergeant Enrique Martinez. His birth certificate stating he was born in Texas was good enough for the U.S. Marine Corps. Nonetheless, the State Department refused his application for a passport on the grounds that it was insufficient proof that he was a U.S. citizen,” Frost wrote. 

Frost believes these denials and denaturalizations are an, “attack on the citizenship of ethnic, racial, and religious minorities.”

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