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Guest Columnist – Can Birthright Citizenship Be Revoked?

Can Birthright Citizenship Be Revoked? Se puede anular la ciudadanía por nacimiento?

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By José López Zamorano/ La Red Hispana

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Just weeks before returning to power, Donald Trump revived a controversial and divisive idea: eliminating birthright citizenship for the children of undocumented immigrants born in the United States. “We’re going to have to change it. Maybe we’ll have to go back to the people,” Trump said over the weekend in an interview with Kristen Welker on NBC. “We have to put an end to this. It’s ridiculous.”

The proposal is not new. Trump first proposed the plan through an executive order during his 2016 presidential campaign, but now it returns with greater intensity as an attempt to solidify his electoral base and ignite debates in a polarized country. “I was going to do it through an executive action, but then we had to solve COVID first, to be honest with you,” Trump said.

The reality is that ending birthright citizenship in the United States would likely require a constitutional amendment. The 14th Amendment to the Constitution explicitly 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.”*

Can Birthright Citizenship Be Revoked?

This has been interpreted to mean that anyone born in the United States, regardless of their parents’ immigration status, is a citizen. The U.S. Supreme Court case United States v. Wong Kim Ark (1898) upheld this interpretation for children of non-citizen parents who were legally present in the United States. Although it did not directly address undocumented immigrants, this precedent supports the principle of birthright citizenship.

While Congress can pass laws to clarify certain aspects of citizenship, revoking a constitutional right like birthright citizenship would likely exceed legislative authority. Any such law would almost certainly be challenged in court and face scrutiny under the 14th Amendment. Amending the Constitution is a complicated process. It requires the approval of two-thirds of both the House and Senate.

Can Birthright Citizenship Be Revoked?

In addition, this approval should be followed by ratification by three-fourths (38) of state legislatures or a constitutional convention convened by two-thirds of state legislatures (a method that has never been successfully used). Without an amendment or a radical reinterpretation of the 14th Amendment by the Supreme Court, birthright citizenship will remain a constitutional guarantee.

In short: Trump can attempt to revoke this right, but it is a path full of legal thorns and challenges, making success unlikely. Additionally, Republicans will hold only a slim majority in the Senate and House, where Democrats remain opposed. In other words, the plan is likely to end up in the ceremonial drawer of bad ideas.