US birthright citizenship: Why Trump’s move to scrap it is divisive, difficult to enact

Birthright citizenship has long been a cornerstone of American identity. Enshrined in the 14th Amendment of the US Constitution, it guarantees that anyone born on US soil is automatically a citizen.

In recent years, this principle has become a flashpoint for political debate.

Critics argue the policy invites misuse.

US President Donald Trump, now back in the White House, has called for its end. He describes it as a "magnet" for undocumented immigrants. Other US senators echoed these sentiments, suggesting it encourages "birth tourism" and strains resources.

A nation divided

On the other side, defenders see birthright citizenship as essential to American values. Constitutional scholars warn that altering it could spark legal challenges and erode civil rights.

The controversy also has cultural undertones. Some argue it reinforces America's identity as a land of opportunity. Others see it as outdated, tied to a different era of immigration.

Public opinion is divided. Recent polls show Americans are split on whether the policy should stay. Meanwhile, immigrant advocacy groups fear changes could create a new class of "stateless" individuals.

The debate continues to raise fundamental questions: who gets to call themselves American—and why?

Let's explore this issue and the potential impact of any changes to this deeply rooted policy:

What is birthright citizenship?

Birthright citizenship is a legal right that grants US citizenship to anyone born on US soil. It is based on the "jus solis" ("right of soil") doctrine.

This principle simply states that a person's citizenship is determined by the place of their birth, (not their parents' citizenship), regardless of their parents' nationality or immigration status.

The Citizenship Clause 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."

It is considered a cornerstone of American values, promoting inclusivity and equality. 

What does Trump's executive order aim to do?

Donald Trump’s executive order aims to end automatic citizenship for children born in the US to parents who are in the country illegally or on temporary visas.

Trump and his camp argue that this change was necessary to prevent the ‘abuse’ of the immigration system. Trump encouraged the debate over birthright citizenship during his first term itself, but it was never pursued.

Trump campaigned on ending birthright citizenship and said that it creates a situation where pregnant women come to the US on ‘birth tourism’ just to have their children born in the US and be eligible for US citizenship.

What does Trump’s order say?

Trump has targeted the phrase ‘subject to the jurisdiction thereof’ in the original amendment and is seeking to interpret it differently.

Their argument is that ‘The Fourteenth Amendment has always excluded the persons who were born in the United States but not “subject to the jurisdiction thereof”, from birthright citizenship.  

The key deviation from the 14th amendment in the executive order is this: 

“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in 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 (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Who would be affected by this order?

The order would primarily affect children born in the US to undocumented immigrants or those on temporary visas. These children, often referred to as "anchor babies," currently receive US citizenship at birth.

If and when the order is implemented, they would not automatically be granted US citizenships. It would only apply to children born in the US after 30 days from the date of the executive order.  

Can Trump reverse birthright citizenship with an executive order?

No. Changing it requires a constitutional amendment.

The 14th Amendment is part of the Constitution, and altering it involves a rigorous, constitutional process.

For this to happen, an amendment needs to be proposed either by Congress, with a two-thirds majority in both the House of Representatives and the Senate, or by a Constitutional Convention called for by two-thirds of state legislatures.

Following that, it must be ratified by three-fourths of the states. Already, nearly half of them — 22 of the 50 states — have reportedly decided to sue to stop Trump’s order blocking the birthright citizenship. 

Trump is not entirely unaware of this. When asked by a reporter about the possibility of legal challenges, Trump replied, "We'll see. We think we have very good grounds."

What are the legal challenges to this order?

The American Civil Liberties Union (ACLU) and other advocacy groups have already challenged the order in court, arguing that it violates the US Constitution. 

Trump's order would threaten children and their families "with a lifetime of exclusion from society and fear of deportation from the only country they have ever known," the advocates wrote in the complaint, according to a Bloomberg report. 

They claim that the 14th Amendment clearly protects birthright citizenship, and any attempt to change this through an executive order is unconstitutional. 

"Denying citizenship to US-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values," Anthony D. Romero, executive director of the ACLU, said in a statement. 

Legal experts anticipate a lengthy court battle, potentially reaching the US Supreme Court.