EO 14160: The ‘Meaning’ of American Citizenship

Among President Trump’s recent flurry of executive orders came an order reinterpreting the 14th Amendment to end the practice of granting birthright citizenship. Challenges to this action suggest that doing so may not be within his constitutional authority. 

The Details

During a signing spree on his first day in office, the freshly inaugurated President Trump issued Executive Order 14160: “Protecting the Meaning and Value of American Citizenship.” This order, which reinterprets the Fourteenth Amendment to no longer allow for birthright citizenship, was foreshadowed by the ubiquitous anti-immigration rhetoric of Trump’s 2024 campaign.

The Fourteenth Amendment begins by granting full citizenship to all persons “born or naturalized in the United States, and subject to the jurisdiction thereof.” Essentially, EO 14160 identifies two categories of children which it claims are not “subject to [United States] jurisdiction,” and therefore do not qualify for citizenship under this so-called “traditional” interpretation of the Fourteenth Amendment. 

The two categories excluded from birthright citizenship are children whose fathers are not U.S. citizens, and whose mothers are either (a) present unlawfully, or (b) present lawfully but temporarily. The order charges several executive officials, including the Attorney General and the Secretary of Homeland Security, with ensuring that agencies are complying with the President’s interpretation of the Fourteenth Amendment. 

Interestingly, the order itself provides no instructions as to its implementation; instead, it orders “the heads of all executive departments and agencies” to issue public guidance on implementation within the month. 

Can the President Do This? 

Such a controversial move by the nation’s chief executive raises questions over whether or not it lies within his constitutional authority. Recent challenges to this executive order indicate that such an action does not fall within the scope of presidential power. Since the order was issued, a multitude of states have taken to legal action, and at least ten lawsuits have been filed in opposition.

So far, at least four of those lawsuits have resulted in federal judges issuing temporary injunctions blocking EO 14160 from taking effect. Although the judges’ reasoning has not yet been released, attorneys general from 18 states emphasized in a statement that “[Trump] cannot rewrite the Constitution with the stroke of a pen.”

More importantly, however, is the fact that the power to interpret the Constitution lies squarely with the Supreme Court. Allowing the president to reinterpret a constitutional amendment via executive order would not only be a violation of the separation of powers — it would set a dangerous example for presidents who view the constitution as an obstacle. 

Tellingly, precedent strongly supports an interpretation of the Fourteenth Amendment that allows for birthright citizenship. In a landmark ruling, United States v. Wong Kim Ark (1898), the Supreme Court established that, under the Fourteenth Amendment, a child born to parents living in the United States “becomes at the time of his birth a citizen of the United States.” 

Besides establishing a clear precedent regarding birthright citizenship, United States v. Wong Kim Ark (1898) also discusses how the Constitution, in requiring that the President be born in the United States, recognizes that a person’s place of birth plays a critical role in shaping their allegiance. Ironically, prior to his first bid for the oval office, Donald Trump cast doubt regarding the authenticity of Obama’s birth certificate — questioning the former president’s allegiance for having allegedly been born abroad rather than within the United States. 

The Consequences of Ending Birthright Citizenship

Aside from the legal implications of EO 14160, there are also some practical concerns regarding its implementation. For instance, ending birthright citizenship would create uncertainty surrounding the eventual citizenship of a staggering number of pregnancies, inserting instability into the lives of expectant parents — many of whom are skilled, legal workers looking to eventually settle down in the United States. 

This would greatly reduce the incentive for immigration to the United States, erasing the vision of the “American dream” for people abroad who seek a better life for themselves and their families. Continued immigration is essential to the success of the United States economy, generating tax revenue and boosting the size of the American labor force. Reduced immigration would almost certainly have negative consequences on the economy, regardless of the constitutional implications.

A 2012 study by the CATO institute, conducted to assess the effects of potentially ending birthright citizenship, highlights major problems in logistics and implementation, even for those not directly being denied citizenship. The study indicates two areas where costs could potentially be passed on to current citizens: decreased tax revenue from not admitting as many new citizens, and fees for verifying parental citizenship upon the birth of every child. 

Most unsettling, however, is the fact that — in cases where parents’ countries of origin are unwilling to recognize their children’s citizenships — it would create a class of stateless children in the United States. Although the Trump Administration is purposively targeting illegal immigrants — who they consistently portray as criminals — their newborn children are innocent by anybody’s standards. They should not be denied the privilege of citizenship for actions they had no control over.

In the words of the 18 attorneys general who filed suit against the President, although “Trump may believe that he is above the law, [he] is not a king.” Judging by the rulings that have been released until now, EO 14160 is likely to be found unconstitutional. Allowing such an order to stand would set a dangerous precedent for unilateral unconstitutional action by the President without consulting the other branches. 

Image Source: Arab Center D.C.