Can Trump revoke his birthright citizenship?

In one of his first acts as the 47th president of the United States, Donald Trump signed an executive order aimed at ending the auto-citizenship rights of almost anyone born on US territory known as “born-born citizenship.”

It's a policy change he's been committing to for a long time, but it's not easy to implement. The Supreme Court is scheduled to consider the case Thursday after multiple legal issues have stopped the order from coming into effect.

Trump's order seeks to deny the citizenship of children of people in the United States on illegal or temporary visas.

Most legal scholars say the president has no authority to unilaterally change laws in this field. This is based on an amendment to the US Constitution.

The first sentence of the 14th amendment to the US Constitution establishes the principle of birthright citizenship.

“Everyone born or naturalized in the United States is subject to that jurisdiction and is a citizen of the United States and the state in which they live.”

Immigration hardliners argue that the policy is “a great magnet for illegal immigrants” and encourages pregnant women to cross borders in order to give birth and stay in the United States.

Advocates of birthright citizenship point out that it has been a land law for over a century, and elimination of it would create a “permanent subclass of people born in the United States who are denied full rights as Americans.”

The concept of birthright citizenship, also known as the legal term “jus solid,” is based on common English law and is generally accepted to apply to white people throughout American history.

However, it did not become part of the Constitution until 1868 when the 148th Amendment was passed in the wake of the US civil war to resolve the issue of citizenship among former American-born slaves.

Previous Supreme Court cases, such as the Scott v. Sandford territory in 1857, held that African Americans could never become US citizens. The 14th amendment overturned that.

In 1898, the US Supreme Court ruled that in the case of US v Wong Kim Ark, birthright citizenship applies to immigrant children.

Wong, a 24-year-old child of a legal Chinese immigrant born in the United States, denied re-entry when he returned from a visit to China. Wong argued that because he was born in the United States, his parents' immigration status did not affect the application of the 14th Amendment.

The court ruled in Wong's favor and outlined some limited exceptions to birthright citizenship, like the children of diplomats.

“Wong Kim Ark v. America has asserted that everyone born in the United States is entitled to all rights provided by citizenship, regardless of race or parental immigration circumstances,” wrote Erica Lee, director of the Center for Immigration and History at the University of Minnesota. “The court has not reviewed this issue since.”

Most jurists say President Trump cannot end his birthright citizenship on student orders.

“He's doing something that confuses a lot of people, but in the end this will be decided by the court,” said Saikrishna Prakash, a constitutional expert and professor at the University of Virginia Law School. “This is not something he can decide for himself.”

Prakash said the president could order employees of federal agencies to interpret citizenship more narrowly, but would pose legal challenges from, for example, US immigration and customs agents, those whose citizenship has been denied.

The Trump administration's argument is based on the provisions of the 14th Amendment, which reads “the subject of its jurisdiction.” The language claims to illegally exclude non-citizen children who are not in the United States.

The courts generally disagree. In Plyler v Doe, a 1982 Supreme Court case that included another part of the 14th Amendment, the judge rejected the Texas argument that undocumented immigrants were not “persons within their jurisdiction.” The court ruled that both immigrants are subject to US law and granted the protections they offer.

Constitutional amendments could abolish birthright citizenship, but that would require two-thirds of votes in both the House and Senate and three-quarters of the US approval.

According to Pew Research, in 2016, approximately 250,000 babies were born to unauthorized immigrant parents in the United States. This is down 36% from its peak in 2007. By 2022, the most recent year when data is available, there were 1.2 million US citizens born to unauthorized immigrant parents.

But since those children also have children, the cumulative effect of ending birthright citizenship could increase the number of illegal immigrants in the country to 4.7m in 2050, the Institute for Immigration Policy, a think tank, found.

In an interview with NBC's Meet the Press, Trump said he thought that unauthorized immigrant children should be deported along with their parents.

“I don't want to break up my family,” Trump said last December. “So the only way you don't break your family is that you have to keep them together and return them all.”

Trump took the case to the conservatively controlled Supreme Court after the lower court opposed his plan. The discussion of the incident will be heard on May 15th.

District court judges in Maryland, Massachusetts and Washington have issued nationwide injunctions to prevent Trump's orders from being implemented.

Seattle judge John Corneau called it “blatantly unconstitutional.”

The Trump administration is currently bringing these injunctions to the Supreme Court, arguing that federal judges should be more restrictive in ways that block federal policies. Specifically, the administration hopes that only injunctions will apply to those appointed in the case.

If the Supreme Court limits the scope of judges' orders to only those immigrants, the administration can remove protections for all immigrants that are not specifically designated.

This allows Trump's executive order to be enacted without a court rule on the constitutionality of the order itself.

In almost every case, over 30 countries practice without limiting the automatic “Jus Soli” or “the right of the soil.”

Other countries, such as the UK and Australia, allow amended versions of citizenship that are automatically granted if one parent is a citizen or permanent resident.