An immigration lawyer breaks down Trump’s attack on birthright citizenship—and if the 14th Amendment can save it

On Inauguration Day, President Trump signed a flurry of executive orders, including one attacking birthright citizenship. Birthright citizenship is the practice of granting anyone born on U.S. soil (with the exception of children of foreign diplomats) U.S. citizenship. It dates back to the 14th Amendment of the U.S. Constitution.

Fast Company spoke to Eric Welsh, a partner at Reeves Immigration Law Group, to understand what the new executive order means and unpack its legality.

Who will be impacted by the birthright citizenship executive order?

The new executive order seeks to stop granting U.S. citizenship to two different sets of babies, born 30 days after the executive order was written. The two groups are:

1. “when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth…”

OR

2. “when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth…”

2. “when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth…”

In other words, to be granted automatic citizenship, a child must have a least one parent who is a U.S. citizen or lawful permanent resident (someone with a green card). The language of the executive order places more importance on the mother’s legal status, but according to Welsh, the difference is negligible.

Trump mentioned that he would be targeting “illegal” immigrants, but this executive order includes students and highly skilled workers who might be here on a temporary visa. According to the Migration Policy Institute, this would impact an estimated 4.7 million children by 2050, 1 million of whom would have two parents born in the U.S.

How will it impact them?

Children who don’t have U.S. citizenship will not be able to access benefits such as deportation protection, the ability to vote, social security benefits, and Medicare and Medicaid, as well access to some types of jobs.

If a baby can’t be granted citizenship through a different country, and if a different country will not accept them if they are deported, they will become stateless and caught in limbo.

Welsh speculates the executive order is an attempt to end the practice of having “anchor babies”—that is, undocumented immigrants having babies in the U.S. in hopes that it will help them obtain citizenship or permanent residency.

But “ending birthright citizenship is unlikely to reduce the number of children born to illegal immigrants,” says Welsh. “It takes 21 years before your child can help you get citizenship, and it doesn’t overcome barriers if you’ve come here illegally or stayed past a visa.”

What this will do, he says, is instead create a group of people who are stateless and caught in limbo: “They won’t be removable, and they won’t have rights.”

What legal power does the birthright citizenship executive order have?

Executive orders allow the president to manage the federal government, and are typically used for routine administrative matters. They are subject to federal law and must abide by the Constitution.

There’s a strong case to be made that this executive order is unconstitutional, and Trump is overstepping his executive powers.

The 14th Amendment states:

“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.”

“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.”

For over a century, this has been interpreted legally to mean that anyone born in the U.S. is a U.S. citizen. (A notable exception is children born to foreign diplomats, since foreign diplomats are not subject to U.S. law.)

However, Trump’s executive order attempts to argue that the 14th Amendment does not apply to everyone born in the U.S. It states:

“…The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”

“…The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”

Historically, legal scholars have debated what “subject to jurisdiction” means in the context of citizenship. Broadly, “subject to jurisdiction” means someone must follow American laws. The executive order attempts to say people born in the U.S. without at least one parent who is a citizen or permanent resident are not subject to America’s jurisdiction.

However, this opens several thorny legal questions. If someone can’t get citizenship because they aren’t subject to jurisdiction, does this mean they can commit crimes without punishment? Are they above American law?

“The implications of implementing this will be more disastrous for the current administration than allowing birthright citizenship to continue,” Welsh says.

What happens next?

Currently, a group of Democratic states and civil rights groups are filing lawsuits in federal courts to challenge the executive order. Given the magnitude of what is at stake, any ruling from the judges would likely be appealed and then go to the circuit court. From there, any appeals to circuit court rulings would go to the Supreme Court.

“This opens the door for the Supreme Court to reinterpret the 14th Amendment,” Welsh says. Welsh is of the opinion that the Supreme Court is unlikely to uphold the executive order as constitutional because it would mean undoing decades of precedent, as well as opening the door to questions like who is subject to jurisdiction and what should be done with stateless children.

Getting a verdict on whether or not the executive order is legal will probably take longer than 30 days. In the meantime, Welsh says a federal court will likely issue an injunction—which means the executive order cannot be put into effect until the courts decide if the executive order is legal.

Welsh doesn’t think it’s likely birthright citizenship will go away, although he warns that the current Supreme Court has been unpredictable. He sees the executive order as a means to accomplish two ends: first, helping Trump keep his campaign promise. “Trump is good at telling his base he’ll do something and then doing it, even if he knows it’s not constitutional,” he says.

But second, Welsh worries it’s a distraction technique and that the flurry of executive orders will tie up so many resources from challengers that eventually, something will slip through the cracks. “There are policy changes we might miss,” he says.