One of Donald Trump’s campaign promises was to end automatic citizenship for millions of individuals born in the United States to undocumented immigrant parents every year. Today, following Trump’s inauguration, a White House spokesperson stated that Trump will make good on this promise and issue an order that will do just that. Many legal experts, however, are stating that there will undoubtedly be legal challenges to any executive order that purports to end what is known as “birthright citizenship” because it can’t be done without changing the Constitution.  Ultimately, the question of whether the president can end birthright citizenship will be decided by the United States Supreme Court. The decision they make could upend decades of court decisions and affect the rights of millions of people. So, let’s break it down.

Section 1 of the 14th Amendment of the United States Constitution 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.” Up until now, it has been assumed that this means anyone born in the United States is automatically a citizen of the United States – hence the term “birthright citizenship.” You may or may not remember from history class that the 14th Amendment was drafted after the U.S. Civil War to grant equal citizenship to the newly freed black slaves. This is why it was very important for the Amendment to expressly state that any person born in the U.S. is a citizen of the U.S. In order to protect the rights and liberties of former slaves and their children, States needed to be prevented from proclaiming that parents had to be citizens to grant citizenship on their children. Yes, this was a thing certain states wanted to be able to do to keep black people from voting, holding office, owning land, etc.

Anyone with a basic understanding of the U.S. Constitution should know that the President cannot unilaterally change any part of it. Changing the Constitution requires ratifying amendments or calling a Constitutional Convention, neither of which is likely to garner much support. But is it possible there is a way the president can get around changing the words of the Consitution and still end the long-standing practice of birthright citizenship?

The Trump team thinks so and is apparently going to give it a shot. To understand how, a person must understand the separation of powers and the roles of the different branches of the U.S. government. So, once again, think back to history class or civics class. At some point, you hopefully learned that the United States government is made up of 3 branches: legislative, executive, and judicial. The Constitution gives each branch its job. The Legislative Branch consists of the two houses of Congress. The Executive Branch consists of the Office of the President, and the Judicial Branch is made up of the Supreme Court and the lower courts (Courts of Appeals, District Courts, etc). The Legislative Branch is charged with making the laws. Only Congress can pass laws affecting the entirety of the United States. The Judicial Branch is in charge of interpreting those laws. The Supreme Court is the ultimate decider of what the Constitution and the statutes Congress writes mean. The Executive Branch is in charge of carrying out the laws that Congress wrote and can also veto those laws.

You may be asking, “If Congress is the only body that can write or re-write the laws, how is Donald Trump planning to change *this* law?” The answer is he is banking on the Supreme Court agreeing with his interpretation of the words “and subject to the jurisdiction thereof” to mean that a person’s parents must be in the United States legally at the time the person is born for the 14th Amendment’s grant of citizenship to apply.  “But wait!” You may be exclaiming. I thought you said the Executive Branch only enforces the laws; it doesn’t interpret them!” Yes, but the Executive Branch is enforcing the law by deciding who is and is not a citizen according to the law and who can therefore be legally removed from the country.

The Executive Branch makes these interpretive decisions all the time through administrative agencies. These agencies, created by Congress with enabling statutes, are usually given the power to make regulations. These regulations have to exist within the parameters set by Congress. So, the Executive Branch interprets the enabling statutes to determine what regulations to make and enforce. The interpretations are then subject to judicial review to determine if the agency’s interpretation is correct.

Because administrative agencies are part of the Executive Branch, they are ultimately controlled by the President. The president decides priorities for administrative agencies and sets overall agendas and policies. This is why changing administrations can mean extreme changes for the rights of individuals. This is particularly true when it comes to immigration.

Immigration policy is the domain of the Justice Department, which, despite its name, is an administrative agency and is not part of the judiciary. Trump’s plan appears to be to sign an executive order that will instruct the Justice Department to interpret the 14th Amendment’s language to mean that individuals whose parents are not citizens or legal immigrants in the United States do not fall under the jurisdiction of the United States.

You may be asking yourself at this point, “What does it mean for someone to be under the jurisdiction of the United States? When is someone NOT under the jurisdiction of the United States?” These are really good questions. Historically, a person inside the boundaries of the United States has been considered to be under the jurisdiction of the United States except in limited circumstances, mainly diplomats. A person who is born in the United States while their parent is present in the U.S. as a diplomat of a foreign country is not a U.S. citizen because diplomats remain under the jurisdiction of their home country. This lack of jurisdiction is why they have diplomatic immunity. It is also why the United States can kick diplomats out of the United States. Foreign armies and native tribes are also not considered to be under the jurisdiction of the United States. Native Americans are legally United States citizens. However, Tribal Governments are sovereign.

The argument for this interpretation should be an uphill battle. After all, the Trump administration would have to argue that individuals in the U.S. illegally are not subject to the jurisdiction of the United States. This outcome would be ludicrous, and historically, the courts have not been in favor of ludicrous outcomes. If undocumented immigrants are not subject to the jurisdiction of the U.S. they could not be arrested and tried under the laws of the United States. Although this would mean the government could deport infants and children more easily, it would also mean that undocumented immigrants who commit crimes could not be charged for them in the states where the crimes occur. Essentially, they would have immunity from prosecution and the U.S.’s only recourse would be deportation.  I doubt the conservative majority of the Supreme Court or a majority of Americans would be in favor of this result. 

So, regarding the question, “Can the president end birthright citizenship,” I think the answer is no. Without a change to the Constitution, which the president cannot do through an executive order, birthright citizenship is the law of the land.