Trump the Dictator? The Unconstitutionality of Ending Birth-Right US Citizenship
“All persons born in the United States are citizens.”
A sentence carrying enormous weight and enshrined as the 14th Amendment in the US Constitution is being challenged by none other than self-described King Donald Trump. Yet, what are its constitutional implications and can the current president overturn such a fundamental right? “Our country is going to hell. We have to start a process where we take back our country” – this article will present an investigation into Trump’s vision of “taking back” America and consider the extent we can have faith in the system of checks and balances in place to contain Trump’s intention to ignore the judicial branch.
I. The potential Republican loopholes in “protecting the meaning and value of American citizenship”
Whilst the president cannot end birthright citizenship for US-born children of undocumented immigrants through an executive order, Trump may very well set up legal challenges to the current interpretation.
Crucial here is the isolated and lesser-known Supreme Court landmark decision in 1898 of Wonk Kim Ark. Here, the guarantee of citizenship to virtually everyone born in the US was reaffirmed – so how can it possibly be used as a somewhat compelling argument to advance the opposite? The Wong decision included an exception for children “of enemies within and during a hostile occupation”, which some speculate could be used as a basis of the Trump administration to undermine the right to birthright citizenship. Therefore, a majority of the Supreme Court would have to deem most or all undocumented people as being part of an “invasion” of US territory and their children to exclude them from citizenship under the 14th Amendment. However, such an interpretation would undermine the constitution beyond recognition, being perceived not as law but as the court bowing to the arbitrary whims of executive branch overreach.
Furthermore, the Trump administration relies on the clause in the 14th Amendment that reads “subject to the jurisdiction thereof”, claiming the language excludes children of non-citizens who are in the US unlawfully.
II. Does US birthright citizenship act as a “magnet” of people being “rewarded for breaking the law”?
It is important to understand that Trump is pushing for a new wave of American politics: a reality in which innocent children are deemed to become lifelong prisoners carrying the weight of being “second-class” citizens (dare I say humans) and are forever excluded from health care, voting, obtaining a social security number, etc. Children born in America, based on pure misfortune, after Feb 19 2025, shall never become “real” legal Americans and be recognised as citizens by the federal government. Basically, it is “drawing a line between two kinds of American citizens”, as advanced by Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s Law School.
Although personal, I have had interesting discussions with peers, and due to the gravity of this issue, I would like to raise a point made during such. Bear with me as I invite you to imagine this scenario: a woman living in the US with a temporary visa experiences the horrific consequences of sexual assault and falls pregnant by a man who is not a US citizen or permanent resident at the time. What to do? Abortions are becoming illegal state by state, with doctors facing criminal charges - if willing to perform them, planned parenthood facilities are underfunded, and demand is overwhelming. So, there is virtually no other option but to go through with the result of one of the assaults, the pregnancy. One must not forget a crucial component of our scenario: this child, under Trump’s executive order, will never be recognised as a citizen by the government. A life deemed as less before it has even begun. Tell me, where is the reward here? How have we possibly advanced a woman’s and this innocent child’s life?
According to Pew Research, by 2022, there were 1.2 million US citizens born to unauthorised immigrant parents. Ending birthright citizenship could then increase the number of unauthorised immigrants in the country to 4.7 million in 2050, as speculated by the Migration Policy Institute. Ironically, the president so eager to deport illegal immigrants would eventually, with his executive order, give rise to an unfathomable number of unauthorised individuals within the US.
III. Trump the dictator?
On February 6, US District Judge Hon Coughenour of Washington State issued a preliminary injunction against Trump’s executive order, essentially freezing the order indefinitely until the courts reach a final decision. As US Berkeley's Volpp has argued, the US has a legal system based on precedent, with past cases dictating a particular vision of how to interpret the law. Nonetheless, caution should be granted as the Supreme Court was willing to overturn the landmark case Roe v Wade in 2022, ruling that a national right to abortion was not “deeply rooted in this Nation’s history or tradition”. What are the chances that the same might occur to Wong Kim Ark? As explained by Robert L. Tsai, professor of constitutional law at Boston University, inviting the Supreme Court to revisit Wong Kim Ark “would give the Trump administration the opportunity to ask the court to either overrule or narrow” the well-established legal precedent.
Although Trump claims that automatic citizenship for the children of undocumented immigrants is “based on a historical myth and wilful misrepresentation of the law”, it currently remains to be good law and still stands rightfully so. That is, until the courts have reached their final decision, which would require a two-thirds vote in both the House of Representatives and the Senate as well as approval by three-quarters of US states – a virtual impossibility.
However, what implications should we draw from the fact that it is even in consideration of being overturned? Does it not speak volumes about the kind of presidency the American people have democratically elected? The legislative branch, as well as the citizenry, must act as a check on the political ambition of a man dreaming of “rule as a dictator”. Trump´s order has been deemed as “blatantly unconstitutional” by Judge Joh Coughenour, and whilst quite unlikely to result in an amendment of the US Constitution, a push towards such a radical change from the current president should not be undermined. Frankly, it is a warning sign – a red flag one might say – of the lengths some members of the Trump administration are willing to go to.
IV. America - the land of the free because of the brave
The wording of ‘some’ has been chosen intentionally, let us not forget the bitter conflict between tech billionaires Elon Musk, Vivek Ramaswamy, and MAGA hardliners Steve Bannon and Stephen Miller over the proposal of expanding a program to issue more H1-B visas to overseas engineers.
Trump and his cabinet are essentially creating a divide between “worthy” citizens, in this case, foreign engineers crucially needed to keep the American tech industry afloat and “actual” illegal immigrants “unworthy” of ever being truly American. How is it that Musk, backed by Trump, vowed to go to “war” to defend the visa program for foreign tech workers, yet this initiative goes against the very core of what MAGA vows to stand for? Longtime Trump confidante Bannon is critiquing “big tech oligarchs” for supporting the H-1B program and casting immigration as a threat to Western civilisation. What we are witnessing is a divide even within the Republican party, as much as Trump wishes to cast immigration as the root of all evil, at the end of the day, he eventually relies on it.
The Wong Kim Ark case, for many, represents a symbol of how legal battles for equality in the US have been furthered by various communities. The modern debate around birthright citizenship aims to restrict people from chasing the “American Dream”. However, upholding birthright citizenship is not only about finding equality in one lifetime. It is about offering possibilities of prosperous futures forever from communities.
By Estella Neumayr
