UPDATE (Jan. 21, 2025, 1:26 p.m. ET): President Donald Trump issued an executive order on Monday, the first day of his second term in office, that attempts to revoke the right to automatic birthright citizenship. A coalition of Democratic attorneys general filed a lawsuit on Tuesday seeking to block Trump’s proposal.
President-elect Donald Trump says he wants to end birthright citizenship. But his stated policy goal is in tension with the Constitution, and an executive order from the Trump White House attempting to achieve that goal could lead to an early Supreme Court test in his second term.
The 14th Amendment says: “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.” Supreme Court precedent going back more than a century has said that a person is a U.S. citizen if they’re born in the U.S. to noncitizen parents.
Practically speaking, amending the Constitution is difficult by design.
Given that constitutional grounding, the most straightforward way to amend that right is to amend the Constitution. Of course, that approach is straightforward only in a formal sense. Practically speaking, amending the Constitution is difficult by design. That’s likely why the president-elect has signaled executive action as the means by which he intends to accomplish his stated goal.
Expect litigation if Trump makes such an attempt after taking office on Jan. 20.
As it happens, a Trump-appointed federal appeals court judge recently staked out a position that could weaken birthright citizenship after he previously endorsed it. That judge, James Ho, sits on the Republican-friendly 5th U.S. Circuit Court of Appeals, and he could be a Supreme Court nominee in Trump’s second term if a vacancy arises. During litigation over Texas’ installation of a floating barrier in the Rio Grande, Ho wrote a solo opinion endorsing the theory that the U.S. is under an “invasion” from the “illegal immigration crisis,” the sort of argument that could bolster Trump’s quest to weaken birthright citizenship. To be sure, Ho is just one judge, and the Supreme Court has rejected the 5th Circuit when the appeals court has gone too far even for the high court. But while the fate of any legal challenge to a Trump-backed attempt to restrict birthright citizenship would depend on the case’s specifics, it’s this sort of dynamic that could present itself: a claim that tests the boundaries of the Constitution, while we wait to see whether the Supreme Court will swat it away or entertain it. Indeed, more than one issue in the coming years could present this dynamic. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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