Trump order ending birthright citizenship for illegal immigrants is constitutional, expert says

While nearly two dozen states are suing to stop President Donald Trump’s executive order ending birthright citizenship for the children of illegal immigrants, some legal experts, such as Hans von Spakovsky with the Heritage Foundation, say the order is perfectly legal under the 14th Amendment and should be upheld by the courts.

“I strongly believe that Donald Trump is correct, that we need to enforce the 14th Amendment as it was originally intended,” Spakovsky told Fox News Digital. “No doubt there will be lawsuits against it, it’ll get to the U.S. Supreme Court, and if the court follows the actual legislative intent and history, they will uphold what Donald Trump has done.”

As Trump has moved quickly to clamp down on illegal immigration, his most controversial move yet was to issue an executive order ending birthright citizenship for children of illegal immigrants.

The order titled the “Protecting the Meaning and Value of American Citizenship” states that “the privilege of United States citizenship does not automatically extend to persons born in the United States” when that person’s parents are either unlawfully present in the U.S. or when the parents’ presence is lawful but temporary.

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Migrants in Brooklyn; President Trump (Getty Images)

Twenty-two Democrat-led states and the ACLU are suing to stop the order, arguing that it violates the 14th Amendment, which 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.”

The lawsuit argues that “the President has no authority to rewrite or nullify a constitutional amendment or duly enacted statute. Nor is he empowered by any other source of law to limit who receives United States citizenship at birth.”

However, Spakovsky, who is a senior legal fellow at the Heritage Foundation and an authority on civil rights and immigration, told Fox News Digital that the 14th Amendment was never meant to include the children of individuals in the country illegally or temporarily and that this broad interpretation has led to widespread “birth tourism” and abuse.

He said the key phrase often overlooked today is “subject to the jurisdiction thereof,” which necessitates the immigrants’ loyalties be to the U.S., not to some foreign power.

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A man plays with a child while waiting with other migrants from Venezuela near a bus station after being released from U.S. Border Patrol custody in El Paso, Texas, Sept. 13, 2022. (REUTERS/Jose Luis Gonzalez)

“The 14th Amendment has two key clauses in it. One, you have to be born in the United States, but you also have to be subject to the jurisdiction of the United States. All those who push birthright citizenship just point to that first phrase and ignore the second,” he said. “I’ve done a lot of research on this. I’ve looked at the original passage of the 14th Amendment and what that phrase meant subject to the jurisdiction of the United States. According to the original sponsors of the 14th Amendment in Congress was that you owed your political allegiance to the United States and not a foreign government.” 

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“That means that children born of aliens who are in this country, and it doesn’t matter whether they’re here legally, illegally, as diplomats; if their parents are foreign citizens when they are born they are citizens of their parents’ native land, they owe their political allegiance to and are subject to the jurisdiction of those native lands, not the United States. So, they are not citizens of the U.S.,” he said.

According to Spakovsky, the 14th Amendment, which was ratified after the Civil War to acknowledge citizenship for former slaves and their descendants, was not used to confer birthright citizenship to illegal aliens until more than 100 years after it was adopted by Congress. 

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President Donald Trump participates in a ceremony commemorating the 200th mile of border wall at the international border with Mexico in San Luis, Ariz., on June 23, 2020. (SAUL LOEB/AFP via Getty Images)

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As Democrats and left-wing groups prepare to launch a legal war with the Trump administration over the order, Spakovsky said he is confident the Supreme Court will rule in Trump’s favor.

“The problem with birthright citizenship is it gives rights as an American citizen to individuals who have absolutely no loyalty to and no connection to the U.S. government, our culture, our society,” he said. “The Supreme Court should uphold it because the original meaning of the 14th Amendment is clearly not recognizing birthright citizenship.”