President Trump made big news before the midterm elections by announcing he wanted to end birthright citizenship, but in the weeks since, there has been nary a word from the White House about possible action.
On Oct. 30, Mr. Trump said he was preparing an executive order that would nullify the long-accepted guarantee of birthright citizenship in the U.S. as part of his agenda to end incentives for illegal immigration.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Mr. Trump said at the time, erroneously singling out the U.S. “It’s ridiculous. It’s ridiculous. And it has to end.”
People familiar with the president’s thinking say the order remains an option. But the White House didn’t respond to several inquiries about whether presidential action is imminent.
“There is no reason to believe that the president has abandoned the option of an executive order on birthright citizenship,” said Andrew Arthur, a resident fellow at the Center for Immigration Studies. If anything, he said, the likelihood of such executive action has increased because a Democrat-led House next year “would likely not consider legislation on birthright citizenship.”
Even some prominent Republican lawmakers rejected the president’s proposal initially. Retiring House Speaker Paul D. Ryan, Wisconsin Republican, said a president “obviously cannot do that.”
“I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process,” Mr. Ryan said at the time.
Whether or not the president is still actively considering the order, “the very broad condemnation he received on both legal and policy grounds when he mentioned it certainly should have caused him to abandon it,” said Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union.
Mr. Arthur said the issue of birthright citizenship, as it pertains to children born in the U.S. to immigrants living in the U.S. illegally, “remains an open question.”
“Although this fact would appear to be resolved in the public imagination, it has not actually been ruled upon dispositively by the Supreme Court,” he said in a recent blog post. “President Trump’s assertion that he would end birthright citizenship by an as-yet-unpublished executive order has brought this issue into focus. Should he issue such an executive order, it would provide the Supreme Court the opportunity to resolve the issue once and for all.”
At issue is the first clause of the 14th Amendment, which 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.”
The amendment was enacted in 1868, three years after the end of the Civil War. The intent was to extend citizenship to black people by invalidating the Dred Scott case, in which the Supreme Court ruled in 1857 that black people were not citizens under the Constitution.
Mr. Jadwat and others opposed to Mr. Trump’s proposal have pointed to the Supreme Court’s decision in 1898 in U.S. v. Wong Kim Ark, in which the Court confirmed that the 14th Amendment guaranteed citizenship to all children born on U.S. soil, no matter what their parents’ status.
The justices in that case ruled that a baby born in San Francisco to parents who were citizens of China — and subject to a law prohibiting them from becoming U.S. citizens themselves — was automatically a citizen at birth.
“The court specifically rejected the argument that a child in those circumstances was not ’subject to the jurisdiction’ of the United States, and thus excluded from the Constitution’s citizenship guarantee,” Mr. Jadwat wrote in a blog post.
Supporters of Mr. Trump’s position say the high court’s ruling was limited to lawful, permanent residents, and that its broader interpretation has never been adopted by the court.
“The Supreme Court has not directly addressed whether the Citizenship Clause necessarily requires U.S. citizenship to be granted to persons born in the United States to unlawfully present aliens,” the Congressional Research Service said in 2015.
Currently, at least 34 countries offer citizenship to all children who are born in those countries. No country in western Europe offers birthright citizenship without exceptions to all children born within their borders.
Mr. Arthur also noted that any countries, including France, New Zealand, and Australia, have abandoned birthright citizenship in recent years. Ireland was the last country in the European Union to abolishing birthright citizenship, in 2005.
The Center for Immigration Studies estimates that in 2014, U.S. taxpayers paid about $2.35 billion in costs associated with more than 273,000 births to immigrants living in the U.S. illegally.
Advocates of tighter immigration policies also say birthright citizenship has resulted in “birth tourism,” in which foreign nationals travel on valid visas to the U.S. to give birth, enabling their children to become citizens. In April 2015, CIS estimated that there were as many as 36,000 birth tourists coming to the U.S. annually.
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