The plot to nullify the 14th Amendment
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This is a useful piece outlining how Trump plans to try to get the Supreme Court to repeal the first clause of the 14th Amendment:
Trump was unconvinced. “Many lawyers are saying that’s not the way it is,” he insisted. The incoming president’s view then, and now, is that the American children of undocumented immigrants should not be entitled to automatic citizenship. And, if prompted to weigh in on this issue, he thought the courts would agree.
“I’d much rather find out whether or not ‘anchor babies’ are actually citizens,” Trump said, “because a lot of people don’t think they are.”
The first Trump administration didn’t test this theory. The second one likely will. The former president has made the end of birthright citizenship a cornerstone of his immigration agenda and mass deportation plan. Automatic citizenship for the children of undocumented immigrants, Trump said in a campaign video from May 2023, “is based on a historical myth and a willful misinterpretation of the law.”
In his next term, Trump will aim to dispute more than a century of legal precedent and deal a blow to a bedrock constitutional understanding of what it means to be an American citizen. He cannot change everything with the stroke of a pen. But Trump can—and says he will—begin the long task of dismantling birthright citizenship. There is a playbook, decades in the making.
The process would begin with a presidential action. Couching it as an attempt to tackle the threat of an “illegal foreign invasion” in the form of unlawful migration, Trump has promised to sign an executive order on day one that would challenge birthright citizenship. The proposed rule would instruct federal agencies to deny passports and Social Security numbers to children born to immigrants, unless one of the parents is a citizen or green card holder. Crucially, his candidacy platform stated, the executive order would “explain the clear meaning of the 14th Amendment.”
The 14th amendment’s Citizenship Clause establishes that “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.” Ratified after the Civil War to nullify the Supreme Court’s Dred Scott v. Sandford decision, which ruled that Black Americans couldn’t be citizens of the United States, it defined citizenship and enshrined the long-standing doctrine of jus solis (“right of soil”)—meaning citizenship by place of birth—in constitutional law.
While the president-elect can’t end birthright citizenship for the US-born children of undocumented immigrants with an executive order alone, he can conceivably set up a legal challenge to the reigning interpretation. As Trump hinted at in the 2015 interview with O’Reilly, he and his allies might look at the courts to do their bidding. And they have a playbook for it: undermine the lesser-known Supreme Court landmark decision in the 1898 Wong Kim Ark case reaffirming the guarantee of citizenship to virtually everyone born in the United States.
It’s dispiriting to consider how long we’re going to be living a smooth pipeline between “lawless idea floated by a crackpot about to be disbarred for sedition” and “a minimum of three votes at the Supreme Court.” But this isn’t just about the Court — there’s a whole infrastructure of Republicans necessary to make these attacks on the Constitution viable.