Politics
Trump’s plan to end birthright citizenship could be decided by the Supreme Court
Donald Trump’s team is crafting an executive order to end birthright citizenship for the children of undocumented immigrants, a monumental move the president-elect’s allies say is a key step in their long-term strategy: getting the issue before the Supreme Court.
The effect of Trump’s order would be to exclude the children of undocumented immigrants and short-term visitors to the U.S. from the right to citizenship by birth that is established under the 14th Amendment. And while there are few details on what exactly he would do and how sweeping the action would be, immigration restrictionists say Trump could do several things, including directing the State Department to refuse to issue passports to children without proof of the parents’ immigration status or the Social Security Administration to withhold Social Security numbers.
He could also direct agencies providing welfare and public benefits to U.S. citizens to deny these benefits to those claiming birthright citizenship, whose parents are in the country illegally. Details of the plan remain unclear, but it would deliver on a promise Trump has made over his entire political career: to restrict birthright citizenship.
Implementation would be no easy feat, but the Trump administration likely wouldn’t get far anyway — at least at first. Any move Trump makes to deny citizenship to children born in the United States to undocumented parents will be immediately challenged by pro-immigration groups and civil rights organizations. And conservative immigration groups are optimistic that the issue could eventually wind up before the nation’s highest court, which they hope will rule in their favor.
“What will happen is, the government will get sued, and it’ll go up to the Supreme Court, and we’ll finally get a final decision on this issue,” said Hans von Spakovsky, a senior legal and judicial studies fellow at the conservative Heritage Foundation. “The last case on this was 1898, so it’s a very long time ago. And I actually think when the Supreme Court looks at this, they will realize and uphold what Trump does.”
Already, Trump’s talk of ending birthright citizenship is setting the stage for one of the first major legal battles of his second term. And his effort could be one of his first major actions to drastically reshape the immigration system upon returning to office.
When asked about the plans, Trump’s transition team referred Blue Light News to the president-elect’s comments during his interview with NBC News last weekend.
The president-elect has repeatedly said he plans to end birthright citizenship in the U.S. on Day One — reiterating this promise during the interview that aired Sunday — while providing no details about how he would get around the 14th Amendment of the Constitution.
Birthright citizenship stems from the year after the Civil War ended when Congress wanted to ensure that children of formerly enslaved people were granted U.S. citizenship. The amendment reads that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The accepted interpretation today, backed by a multitude of legal scholars on both sides of the political aisle, is that a child born in the United States is automatically a citizen, even if the parents do not have legal status (this excludes foreign diplomats working in the country).
But conservative immigration groups have argued that this should not apply to the children of undocumented immigrants because of the “subject to the jurisdiction thereof” language, which they argue has been misinterpreted.
The Supreme Court has never directly ruled on the question, but that could change if the high court takes up any potential legal challenges. The last time justices examined the issue was during an 1898 case, United States v. Wong Kim Ark, when the court ruled that a man born in San Francisco to parents from China — who were lawfully admitted into the country — was a U.S. citizen. Restrictionists interpret this ruling to mean that only those residing in the U.S. with permission meet the 14th Amendment requirement of being “subject to the jurisdiction” of the United States.
Immigration to the U.S. has surged in recent years, with DHS estimating that 11 million people are in the U.S. without legal authorization. Trump used fears over illegal immigration throughout the 2024 presidential campaign, both with his base and voters overall, and both Democratic and Republican state leaders have struggled to manage the influx of migrants coming to their states. When Trump said his administration may seek to end birthright citizenship in 2018, a Pew Research Center analysis of government data found that about 250,000 babies were born to undocumented immigrants in 2016, a decline from the early 2000s.
“It’ll be good to get it back in front of the Supreme Court, have it relitigated,” said Michael Hough, director of federal relations at NumbersUSA, a group that works to reduce both legal and illegal immigration. “The intention wasn’t for the system we have now, and the urgency to is that, whatever number you accept — 10 million, 15 million illegal immigrants come across — well, all the children that they’re having are going to become citizens of the United States.”
While there’s no guarantee the Supreme Court will back restrictionists’ interpretation of the 14th Amendment, conservatives hope the bench, filled with three Trump-appointed justices, would restore what they view as the intended meaning. And they’re bracing for a potentially yearslong battle in the courts to get that answer.
“In the end, this is going to be a long-term process. It’s probably one that will have to extend into the [JD] Vance administration,” said Dan Stein, executive director of the Federation for American Immigration Reform, a restrictionist group. “I mean, this is not going to be all resolved in the first 100 days.”
During Trump’s interview Sunday — in the same breath as vowing to end birthright citizenship — the president-elect also suggested he’d look for ways to allow people brought to the U.S. illegally as children to stay in the country. He tried to rescind the Deferred Action for Childhood Arrivals program protecting them from deportation during his first term, but the Supreme Court blocked that effort.
Immigration advocates say the interview shows how the incoming president’s stance on immigration is riddled with contradictions. Over the last year, pro-immigration groups have been preparing for a second Trump administration’s efforts to overhaul the nation’s immigration system, analyzing Trump’s proposals, drafting legal briefs, coordinating messages and organizing aid for immigrants and asylum-seekers — and they don’t buy the idea that Trump is looking for compromise.
“We take Trump at his word and his track record,” said Beatriz Lopez, co-executive director of the Immigration Hub. “We recognize this set-up: It’s Lucy and the football where citizenship for Dreamers is a possibility if Democrats are willing to change the constitution to end birthright citizenship and deport the parents of Dreamers and millions of other undocumented people. That’s not a compromise; that’s a ransom letter.”
NEW YORK (AP) — The Trump administration has imposed double-digit tariffs on more than 60 countriesusing a legal justification that permits the president to levy import taxes and other sanctions against countries found to engage in “unjustifiable,” “unreasonable” or “discriminatory” trade practices.
The new tariffs announced in recent days take effect just as temporary 10% worldwide tariffs expiredand critics say they are less about cracking down on forced labor than they are a way to replace those tariffs. The expired tariffs were themselves a temporary replacement for worldwide tariffs the Supreme Court struck down in February.
The tariffs were levied on countries that the U.S. says either don’t have or don’t effectively enforce a forced-labor import ban. The affected countrieswhich account for 99% of U.S. imports, were quick to protest, calling the Trump administration’s claims unfounded and arbitrary, as nations with vastly different records on forced labor received the same tariff level. The U.S. spent four months investigating but gave few details on how it arrived at the tariff rates, which are either 10% or 12.5%.
Sidestepping Congress
The tariffs were levied under Section 301 of the Trade Act of 1974 on countries that the U.S. determined had failed “to impose and effectively enforce a prohibition on the importation of goods produced with forced labor.”
During President Donald Trump ‘s first term, he cited Section 301 to impose sweeping tariffs on Chinese imports amid a dispute over the sharp-elbowed tactics Beijing was using to challenge America’s technological dominance. The U.S. is also using 301 powers to counter what it calls unfair Chinese practices in the shipbuilding industry.
“The 301s allow a permanent tariff without going to Congress to settle the dispute,” said Barry Appleton, a law professor and co-director of New York Law School’s Center for International Law. “That’s what all of this is about. The president doesn’t want to knock on the front door of Congress, so he’s trying every side door and every unlatched window to get in.”
Little evidence that countries failed to enforce import bans
The office of the United States Trade Representative (USTR) said it consulted with all 60 economies under investigation and held two rounds of public hearings, elicited more than 2,100 public comments, and had “engagement” with its trading partners about what they were doing to combat forced labor bans.
It didn’t detail its talks with the countries, saying those were confidential. Experts say it is fairly straightforward to investigate whether a country has a ban or not, but it is difficult to determine the government’s exact rationale for each country’s failure to enforce import bans.
“There’s not a lot of hard evidence there,” said Scott Lincicome, vice president for general economics and trade policy at the Cato Institute, a libertarian think tank. “It’s pretty laughable on its face to think that a country like the ones in Europe or in Norway or Switzerland aren’t doing enough to police forced labor.”
And even if countries do enact and enforce the forced-labor import bans the U.S. wants, they would still need to prove that they’re enforcing them to Washington’s satisfaction before the tariffs would be removed, said lawyer Patrick Childress, a partner at Holland & Knight and a former U.S. trade official.
“This suggests that no short-term path for countrywide relief from the new Section 301 tariffs will be available,” he said.
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Countries and industries reject the forced labor argument
Many countries have pushed back against the Trump administration’s findings.
Brazil, which faces a 12.5% forced-labor tariff, called the U.S. move “arbitrary and unjustified.” The U.S. “chose to manipulate an issue of great importance to human rights and the struggles of workers worldwide in order to accuse 59 countries and the European Union of unfair practices,” it said in a statement.
Australia also questioned the justification for its 12.5% tariff.
“We believe that amongst all of the countries in the world, Australia does take the issue of slavery, modern slavery, seriously, and will continue to do that,” Trade Minister Don Farrell told reporters in Adelaide.
Carve-outs have riled some industries. The National Council of Textile Organizations (NCTO), which describes itself as the voice of the American textile industry, protested a mechanism that exempts the Section 301 tariffs for textile and apparel imports from Bangladesh, Cambodia, Indonesia, and Malaysia based on those countries’ imports of U.S. cotton and textiles.
“No other industry has been more disadvantaged by forced labor than the U.S. textile industry, which employs 453,000 workers and has lost 41 plants over the past two plus years,” NCTO chief executive Kim Glas said in a statement. “We remain strongly concerned that USTR’s textile mechanism will harm the very domestic manufacturers the administration seeks to help.”
US forced-labor bans don’t always work
The U.S. has two major pieces of legislation related to forced-labor import bans. The Tariff Act of 1930 gave Customs and Border Protection the authority to seize shipments where forced labor was suspected and to block further imports. But it had a big carve-out: If there was “consumptive demand,” meaning there wasn’t sufficient supply to meet domestic demand, imports were allowed regardless of how they were produced. The Trade Facilitation and Trade Enforcement Act that took effect in 2016 eliminated that loophole.
In 2021, the Uyghur Forced Labor Prevention Act was passed. It blocks imports from China’s Xinjiang region unless businesses can prove the items were made without forced labor.
But goods made with forced labor can still make it into the U.S. In 2015, an Associated Press investigation found that slave labor was used in the fishing industry in Southeast Asia. The seafood they caught made its way to supermarkets and pet food providers across the U.S.
An investigation by The Associated Press in 2020 into the $65 billion palm oil industry found labor abuses among an invisible workforce consisting of millions of men, women and children in Asia. The fruit they harvested made its way into the supply chains of major companies, including Unilever, L’Oreal, Nestle and Procter & Gamble.
Calls for a more comprehensive approach to combat forced labor
During hearings on the tariffs this month, National Retail Federation vice president Jonathan Gold, who was representing the business coalition the Joint Association Forced Labor Working Group at the hearing, said that in order for the import bans to work, they would have to be much more extensive.
He said there need to be “clear, measurable benchmarks” tied to tariffs for countries to hit, and that the U.S. should help countries build enforcement programs.
Kenya Davis, a partner at the Boies Schiller Flexner law firm, said an effective ban needs a “comprehensive approach” that provides transparency about what the investigations consisted of, along with programs that provide countries aid in enforcing bans.
Michigan Democratic Senate candidate Abdul El-Sayed is facing backlash from within his own party after using controversial rhetoric to describe the stakes of his victory in a recent donor meeting.
“You put one ogre on a pike, and then everyone else gets the message, and all of a sudden starts to sound a lot different,” El-Sayed said, describing how his win could propel the progressive movement, according to audio of a Zoom meeting obtained by POLITICO.
On Monday, several Democrats were quick to slam his comments, which they took as direct reference to his Senate primary opponent, Rep. Haley Stevens. El-Sayed had not explicitly mentioned Stevens in the portion of the call Blue Light News reviewed.
“Calling your female opponent an ogre you want to put on a pike is not beating the rap that this race has some serious sexism,” Neera Tanden, a centrist Democrat and president of the Center for American Progress, posted on X. Melissa Byrne, a former staffer for Sen. Bernie Sanders, called the remark an “unforced error” that is “really bad and beneath the progressive project.”
El-Sayed’s leaked comments and the reaction to them amount to another flashpoint in a tense primary that is dividing the progressive and moderate wings of the party, and at times has been defined by accusations of racism and sexism.
“Abdul continues with personal insults and making this race about his personal political ambitions and the other 49 states,” said Arik Wolk, spokesperson for the Stevens campaign. “Haley is focused on getting things done for Michigan, and only Michigan.”
Republicans also immediately jumped on the comment, and some leaned into stereotypes of El-Sayed’s religion as a Muslim. “Michigan Islamist discusses beheading his opponents,” said Steve Guest, a former staffer for Sen. Ted Cruz, on X.
An El-Sayed campaign spokesperson did not immediately respond to a request for comment on the backlash. A spokesperson had previously told Blue Light News that the candidate was “speaking metaphorically” about his intention to support a primary against Sen. John Fetterman in Pennsylvania.
This is not the first time El-Sayed has used — and defended — aggressive political rhetoric. “When they go low, we don’t go high,” the progressive said while speaking at a campaign rally earlier this year, riffing on a famous line from former first lady Michelle Obama. “We take them to the mud and choke them out.”
He and Stevens will face off in their final Democratic Senate debate Monday night, and the results of the Aug. 4 primary could have major consequences for the party as it grapples with its ideological tack ahead of the 2028 presidential election.
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