Even before his first day in office, Donald Trump had stated his intention to end birthright citizenship in the US, and to undermine the Constitution upon his return to the White House. Jim Rice looks at Trump’s efforts to end birthright citizenship and what that says about how he may govern for the next four years.
On December 8, 2024, the then President-elect Donald Trump was interviewed by Kristen Welker of NBC News. In that broadcast, Trump was asked whether he planned to “end” birthright citizenship as he had repeatedly promised during his campaign. His response was typically blunt. “Yeah. Absolutely.” When Welker pointed out that the 14th Amendment states that, “All persons born in the United States are citizens,” Trump replied, “Well, we’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it. We’re the only country that has it, you know.” What was not mentioned in that interview was an 1898 US Supreme Court decision in the case, United States v. Wong Kim Ark, in which a 21-year-old man challenged the prevailing bigoted objections to his constitutional birthright.
Birthright citizenship and the 14th Amendment
Trump’s claim that the United States is the “only nation” that recognizes birthright citizenship was false. Just to make clear, 33 nations grant birthright citizenship, while 32 offer restricted birthright citizenship.
The idea of “birthright citizenship” traces its origins to the Roman legal system, and subsequently to roots within the English Common Law tradition. As was pointed out in the Welker interview, birthright citizenship is explicitly guaranteed in Section 1 of the 14th Amendment:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
– US Const. amend. XIV, § 2.
The wording couldn’t be more explicit. As mentioned, birthright citizenship was subsequently upheld by the US Supreme Court in the 1898 Wong Kim Ark case. There, Justice Gray, writing for the Majority ruled that “[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens . . . ” In that case, the respondent, Wong Kim Ark, was born in San Francisco to parents who were both Chinese subjects of the Emperor of China. At 21, Wong traveled to China to visit his parents, but upon his return to the United States, he was denied entry on the ground that he was not a US citizen and barred under the 1882 Chinese Exclusion Act. In a 6-to-2 decision, the Court ruled in favor of Mr. Wong on the grounds that the 14th Amendment guaranteed that right and that the government’s argument that the residential restrictions found in the Exclusion Act did not apply to him and could not invalidate his rights as a citizen of the United States.

Photo by Anthony Garand on Unsplash
Trump’s Executive Order and the Constitution
As he had promised, immediately following his swearing as president on January 20th, Trump signed an executive order which included a range of policies designed to either limit or end birthright citizenship. These measures include ordering federal agencies stop issuing Social Security numbers, denying passport applications and even the right to attend public school, to children born in the United States of parents who are not US citizens.
Given that any such policies are sure to encounter legal challenges, the question is how the US Supreme Court will rule when challenged by such restrictions. The very suggestion that he has made this claim at all is an indication of Trump’s lack of understanding of the primacy of the Constitution and of the rule of law itself. Trump’s executive order has already been challenged in the courts, and it’s unlikely that the order will be able to prevail based on the clear and categorical language of the 14th Amendment.
Given the apparent futility of issuing an executive order which would either be struck down by the courts, or embarking on the long and difficult task of seeking a 28th amendment to the Constitution, what can be Trump’s motivation for such incendiary language? It is difficult to discern Trump’s understanding (or lack thereof) of constitutional law. However given his track record over the past decade, it is suggested that by demonizing the birthright citizenship provision of the 14th Amendment, he is actually challenging the primacy of the Constitution itself. There is anecdotal evidence for this claim found in Trump’s previous statements.
In 2022, following his electoral defeat in the 2020 presidential election Trump appeared to be calling for overturning the Constitution in a post on Trust Social:
“Do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution,” (emphasis added).
Trump has previously also stated that he would end birthright citizenship by executive order in complete disregard for the Constitution.
Apart from simply ignoring decisions by the judiciary, others have speculated that the Trump administration might use a passage found in the Wong Kim Ark decision itself to undermine the right to birthright citizenship. The Wong decision included an exemption for children “of enemies within and during a hostile occupation.” Based on this passage, a majority of the Supreme Court would have to deem most or all undocumented persons as being part of an “invasion” of US territory and their children and therefore excluded from citizenship under the 14th Amendment. Such an interpretation would distort the facts and the Constitution beyond recognition. It would be perceived not as law but as the court bowing to the arbitrary whims of executive branch overreach.
Trump the dictator?
The question is, now that Trump has been elected, will he actually follow through with his previous hints that it is his intention to ignore the judicial branch and essentially rule as dictator? Another round of chaos has resulted from the bitter conflict which has erupted 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. If this momentary fissure becomes a wider crack, Trump’s policy goals well may become mired in infighting within the Republican Party.
Regardless of Trump’s signature chaotic style of governance, the threats posed by his new administration to the Constitution and the rule of law cannot simply be wished away by indifference or praying in aid of administrative incompetence. Ultimately the legislative branch as well as the citizenry, the “WE THE PEOPLE,” (written in boldface type in the preamble of the Constitution) must now act as a check on the unbridled political ambition of a man who said that he intends to “rule as dictator on day 1”, and by some accounts has already done so.
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