Can Donald Trump simply abolish birthright citizenship?

This week’s episode of Amicus is a Mailbag special in which Dahlia Lithwick and Mark Joseph Stern answer listeners’ burning questions about the law and its chances of survival in a second Trump administration. Amicus listeners have lots of smart questions, so we’re occasionally starting a new series, “Dear (Juris)Prudence,” where we share your questions and Mark and Dahlia’s answers. Write to [email protected] to ask Dahlia and Mark a question. The following transcript has been edited and condensed for clarity.

Dear (Juris)Prudence,

Certainly the new government cannot wave a magic wand and abolish birthright by presidential decree. And any attempts would take at least a little time until the Supreme Court majority decides it’s time to overrule Wong Kim Ark (kidding, not kidding). But…could they make it worthless or make it very difficult to actually advocate for the children of immigrants? Example: To obtain a passport, you must not only prove that you were born in the United States, but also prove that your parents were either citizens of the country or were legally residing there at the time of your birth. Could this be done through an executive order or just regulations?

—Arturo Magidin

Mark Joseph Stern: I think you hit the nail on the head. What you’re describing is probably how Trump will try to abolish birthright citizenship. I think he will issue some sort of order directing federal agencies that issue citizenship documents, such as the State Department or the Department of Homeland Security, to deny those documents to the children of unauthorized immigrants, thereby attempting to deny them American citizenship altogether.

There will certainly be litigation, and as you say, the order will directly violate the Supreme Court’s decision Wong Kim Arkwhich established the birthright to citizenship in the 14th century^Th Change for the children of immigrants. I am optimistic that the Supreme Court will uphold this precedent and stand by birthright citizenship. I think it’s far too late to void this guarantee.

I would also just like to note that part of the problem here is that it is completely impractical at this point to switch citizenship in this country from true birthright citizenship to something like bloodline citizenship based on the Ancestry is restricted. One of the reasons is that most of us born in the United States have citizenship Because we were born here. The government does not investigate our parents’ citizenship or immigration status when it recognizes that we are citizens. No investigation is initiated to ensure that our parents’ visas were legitimate or what their citizenship status was at the time of our birth.

The government simply recognizes that we were born on the ground, under the age of 14^Th Amendment that makes us Americans. This principle applies everywhere – to me, to the children of legal immigrants, to the children of illegal immigrants. And so I think it’s really, really hard to undo that without jeopardizing a lot of people’s citizenship status, which I don’t think this Supreme Court wants to do.

Maybe I’m naive or optimistic, but I don’t think Trump will win in this fight. Of course he will fight to the end, but this is a defeat in my opinion decisive.