Donald Trump says the 14th Amendment, which gives citizenship to anyone born on U.S. soil, is a uniquely American mistake. He’s totally wrong.
“We are 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,” he told Axios on HBO. “It’s ridiculous. And it has to end.”
Trump uses this fallacy to justify a proposal to stop the practice of birthright citizenship applying to everyone. He told Axios on HBO that he is planning to use an executive order to overturn part of the U.S. Constitution. Leaving aside the legal debate over whether that is even possible, it is clear that Trump has been trying to stir up an immigration debate ahead of the midterm elections, which are just one week away.
In reality, America is by no means the only country that grants citizenship this way. The Center for Immigration Studies names 30 of the world’s 194 countries, including Canada and Mexico, that offer jus soli, or the law of the soil. No European countries offer birthright, which could be what Trump was referring to, but many offer conditional birthright status based on the number of years a child lives in the country and the parents’ legal status.
The Axios reporter later acknowledged that dozens of countries used similar laws and updated the story to reflect that, although he had failed to challenge the president on that point during the interview.
It is true that hundreds of thousands of non-American women enter the U.S. to give birth in America. Some arrive illegally as undocumented migrants; others, especially a growing number of Russians and Chinese moms-to-be, come into the country legally, taking advantage of birth-tourism enterprises that will assure their babies have the coveted American passport (and a lifetime obligation to pay American taxes). Still more come to the United States to work legally long before they even plan to have babies on American soil.
Trump told the HBO program that he knows the 14th Amendment can be abolished with an Act of Congress, but he claimed he could also do it with his favorite tool: the executive order.
“Now they are saying I can do it with an executive order,” he said. When asked how far along the executive order was, he replied: “It’s in the process. It will happen.”
Legal scholars say they think it’s unlikely Trump would be able to overturn any element of the 14th Amendment by executive order. If he tries, there is no doubt that it would be challenged in court.
Writing in The Washington Post last summer, Martha Jones, professor of history at Johns Hopkins University and author of Birthright Citizens: A History of Race and Rights in Antebellum America, argued that this has been settled law.
“Birthright has been affirmed, again and again, ensuring that no matter how racist the regime, the Constitution grants citizenship to all people born in the United States,” she wrote.
The 14th Amendment, which was ratified in 1868, was enacted as part of the post-Civil War Reconstruction Era to abolish slavery and give civil and legal rights to black Americans whose parents were brought from Africa as slaves. It has since evolved to include refugees fleeing war and irregular migrants chasing the American dream and provide them with “equal protection of the laws.”