Nope. The President Can’t End Birthright Citizenship

A simple point as we start the morning. The President can’t end birthright citizenship by executive order. This is a completely ridiculous idea, a sort of clown-show trial-run at rule by decree. No one with any credibility, let alone legal experts think an executive order can end birthright citizenship. There has been a push on the right to change this practice by passing a law through Congress, specifically revising Immigration and Nationality Act. This too is dubious at best, though it has been proposed and with a sufficiently partisan Supreme Court anything can be done. The change to legislate a change is best scene as a stunt not real lawmaking.

Birthright citizenship is based on the clear wording of the 14th Amendment. It’s literally the first clause: “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.”

As this historian explains in this thread, birthright citizenship was the default assumption in American law before the 14th amendment. (I strongly recommend reading that thread.) The only question was whether or not this framework was limited to white people. The debates surrounding the language makes clear that birthright citizenship specifically was what the amendment’s authors had in mind and that the need for the language was to apply it to people regardless of race. As a matter of policy you can make any arguments you want. As a matter of what the authors intended (i.e., an originalist argument) it’s really open and shut.

It’s clear that this is yet another shiny object President Trump is throwing up to grab hold of the news cycle in the final days before the midterm election. But the constitutional principle is important enough that a sturdy defense is still necessary.

Dear Reader,

When we asked recently what makes TPM different from other outlets, readers cited factors like honesty, curiosity, transparency, and our vibrant community. They also pointed to our ability to report on important stories and trends long before they are picked up by mainstream outlets; our ability to contextualize information within the arc of history; and our focus on the real-world consequences of the news.

Our unique approach to reporting and presenting the news, however, wouldn’t be possible without our readers’ support. That’s not just marketing speak, it’s true: our work would literally not be possible without readers deciding to become members. Not only does member support account for more than 80% of TPM’s revenue, our members have helped us build an engaged and informed community. Many of our best stories were born from reader tips and valuable member feedback.

We do what other news outlets can’t or won’t do because our members’ support gives us real independence.

If you enjoy reading TPM and value what we do, become a member today.

Latest Edblog
  • |
    June 30, 2022 9:01 a.m.

    The term ends. Stephen Breyer retires. Ketanji Brown Jackson to be sworn in as his replacement. But before all that, the…

  • |
    June 30, 2022 8:57 a.m.

    I want to thank everyone who’s contributed to the TPM Journalism Fund over the last 24 hours and over the…

  • |
    June 29, 2022 2:31 p.m.

    We talk a lot about potential Democratic Senate pick ups. But Democrats also need to hold on to endangered seats…

  • |
    June 29, 2022 8:43 a.m.

    Earlier this month, Ginni Thomas, wife of Justice Clarence Thomas, made a big show of her willingness and desire to…

Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Director of Audience:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: