On his first day in office, President Donald Trump issued an executive order aimed at ending automatic citizenship — known as “birthright citizenship” — for children born in the United States to two noncitizen parents.
His argument rests on interpreting the phrase “subject to the jurisdiction thereof,” found in the 14th Amendment, which codified birthright citizenship into the Constitution. Trump claims that noncitizens, both legal immigrants and undocumented immigrants, are not “subject to the jurisdiction” of the United States. Therefore, their children are not entitled to automatic citizenship.
It’s clear that Trump has little regard for America’s extraordinary ability to welcome newcomers and transform them into fully equal citizens. It’s just as clear that he can’t nullify a constitutional right with the stroke of a pen.
The president’s interpretation has been tested by the Supreme Court and found invalid. In United States v. Wong Kim Ark (1898), the court ruled that a child born to Chinese immigrants was a U.S. citizen by birth, even though his parents were not eligible for citizenship. The court affirmed that “every person born in the United States … needs no naturalization.” In the 1980s, the court reaffirmed this principle in Plyler v. Doe and INS v. Rios-Pineda.
The Supreme Court has specifically clarified what “subject to the jurisdiction thereof” means. Today, it refers to diplomats and their children, who are not subject to U.S. law because of diplomatic immunity. Diplomats generally cannot be arrested, charged or imprisoned. They are, by law, outside U.S. jurisdiction.