“At the end of his last presidency, if I was asked, ‘Is this something he can do?’ I would have said, ‘It’s never going to happen; it’s just a talking point,’” Frost said. “The constitution text and the judicial precedent and very long-standing practice and the purpose of the provision all say, ‘No,’ but at the end of the day, the constitution means what five members of the supreme court say it means.”

Birthright citizenship dates to the passage of the 14th amendment in 1868 in the wake of the American civil war and it was intended to repeal the Dred Scott decision, in which the supreme court held that enslaved people were not citizens of the US.

The amendment declared 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”.

“This is not something that is subject to unilateral executive order,” said Andrew Rudalevige, a Bowdoin College professor who studies the American presidency and wrote a book on the limits of presidential power. “The language of the 14th amendment is pretty clear.”

But in 2018, Trump said that he could – and would – use an executive order to end the right to citizenship for children born in the United States to non-citizens. He also has said inaccurately that the US was the only country that allowed birthright citizenship, when in fact many countries provide the same right.

“We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous and it has to end,” Trump said during an interview on HBO.

Then Trump said recently on Meet the Press that he did not take the executive action during his first term because he had to “fix Covid first” but that he would do so on the first day of his new administration.

Supporters of eliminating birthright citizenship have argued that the “jurisdiction” language could exclude children of undocumented immigrants.

“Congress has the power to define what it means to be born in the United States ‘and subject to the jurisdiction thereof’, ” the Republican Utah senator Mike Lee posted on X. “While current law contains no such restriction, Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.”

Adam Winkler, a law professor at UCLA, said there was no “legal understanding of the term jurisdiction” to support the argument that “undocumented immigrants are not subject to the jurisdiction of the United States.

“The government has power over them. That is what we mean by jurisdiction,” Winkler said. “If conservatives are willing to say that undocumented immigrants can never be jailed for a crime, maybe they can start to get somewhere. But I don’t think that’s a conclusion that they really want to reach.”

James Ho, a US fifth circuit judge and Trump appointee, who some have speculated could be appointed to the supreme court should there be an opening, recently told Reason magazine that no one “has ever argued that the children of invading aliens are entitled to birthright citizenship”.

He previously offered the opposite opinion, writing: “Birthright citizenship is guaranteed by the 14th Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

While Frost thinks it’s unlikely the supreme court would overturn birthright citizenship, she pointed out that the court can be swayed by public sentiment.

For example, in 1986, the supreme court ruled that the 14th amendment did not prevent states from criminalizing private sexual conduct involving same-sex couples. Then in 2003, the court overturned that decision and declared all sodomy laws unconstitutional.

“The way constitutional change generally happens is an accumulation of various voices supporting that change and public opinion,” Frost said.

Trump did not clarify what he meant when he said that to eliminate birthright citizenship, he would “maybe have to go back to the people”.

But to amend the constitution, which has not happened since 1992, the amendment would have to be proposed either by Congress with a two-thirds majority vote in both the House and the Senate or by a constitutional convention called by two-thirds of the state legislatures. Then the legislatures of three-fourths of the states would need to ratify it.

“It’s quite a procedural barrier, in terms of getting a super majority in Congress, getting a super-majority of states to sign off on it,” Rudalevige said. “It’s a pretty high bar.”

But for Trump, even if he is unable to muster the support for a constitutional amendment or if the court struck down an executive order, he could conclude “that he gets value out of fighting, out of showing that he is trying to change the established way of doing business, even if he is incorrect on the merits”, Rudalevige said.

In the unlikely event that Trump eliminates birthright citizenship, that change would hurt the country, the scholars said.

“The 14th amendment was intended to end caste in America, the idea that there is a lower class, a sub class, that lives among us,” Frost said. “This could bring that back.”

>>1368949
Nah. They know if they start going by "spirit" instead of written language, the second amendment doesn't survive review. And conservatives are far too terrified of putting that on the table.

>>1368951
>“Congress has the power to define what it means to be born in the United States ‘and subject to the jurisdiction thereof’, ” the Republican Utah senator Mike Lee posted on X. “While current law contains no such restriction, Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.”
This sounds like one those sovereign citizen arguments.

>>1368949
I'm not opposed to altering birthright citizenship. But if it is to be reformed, it should be through congress and not the courts. The courts are turning into this insanely powerful unelected shadow government.

>>1369449
The main problem is how do you convince them to stop if there's no one to rein them in?

>>1369451
Convince who to stop what? The courts to stop congress? Or the other way around?

>>1369454
The courts mainly. There's way too much power to the supreme court if they can just give people immunity in exchange for protecting them. We can't impeach them for being corrupt because too much of congress relies on their rulings to get away with their own corruption or enable their own power grabs.

Like we literally have justices all but openly admitting to taking bribes at this point. But Republicans will never remove one of their people, and Dems will never achieve the supermajority required to remove them. So it's just going to get worse and worse until something gives.

>>1369455
Really we need to to reform or completely get rid of judicial review. Marburg V. Madison was very controversial at the time, and we're seeing the late stage effects of it now with this juristocracy. Getting rid of it though would be challenging because it's been ingrained in our society for so long. One possible way of clawing back power from the supreme court could be with jurisdiction stripping. Congress could theoretically pass a law with simple majorities to strip the scotus of all it's jurisdiction outside of the stuff specifically defines in the constitution.

>You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps ... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
>Thomas Jefferson

>>1368949
i hate democrats but the reason i think Trump's deportations are going to be a failure is because the US is already filled with ilegals that over time have been granted citizenship, so it's all gonna be aimless nonsense cherrypicking imo

>>1369487
They do all the shit jobs Americans don't want to do. We're heavily dependent on them.

>>1368949
Thank god anything this orange buffoon tries to do through EOs will be thrown in the trash when he leaves office.

>>1369555
Thank god anything Biden the pants shitting dimensia patient did through EOs will be thrown in the trash when he leaves office.

>>1369565
That's great but it doesn't change anything about what I said.

>>1368949
I agree. It made sense in a fledgling nation looking to settle vast amounts of land and there was little social safety nets. Now as a fully established country, it should be right of blood or at the absolute minimum, the parents be legally present within the country.