Opinion | Trump’s Citizenship Policies Run Counter To US Constitution
The opposition to Donald Trump’s order is not due to its perceived injustice but rather its blatant and flagrant violation of the US Constitution
America is often called the ‘land of immigrants’ because its population largely consists of people who migrated from other countries, chiefly from European nations such as England, France, Spain, and the Dutch Republic, which began colonising North America in the late 16th century. Despite the negative origins of settler colonialism, the imagery of the benign Uncle Sam was overlaid to give a positive spin to the ‘land of immigrants’ appellation.
With an area nearly three times that of India but a population less than one-fourth of India’s, the US attracts immigrants from across the globe, offering job and investment opportunities. It has long been a crucible of multiculturalism and a hub for talent.
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Cubans and Mexicans sneaking into the US, thanks to the porous borders, in search of job opportunities of the blue-collar variety have been a mainstay of the nation insofar as menial jobs are concerned, along, of course, with the Afro-Americans. Chicago boasts a sizeable population of German ancestry. The nation has China towns numbering around 50, spread across spatially that incidentally corresponds to the number of states, 50, the US has. While that smacks of a ghetto mentality, Indians and Jews have assimilated themselves into US society much better. Out of a population of 34 billion, the Indian diaspora is 45 million.
But the question that is often asked is whether the US, especially under the Republicans, makes a virtue of necessity when it comes to granting citizenship and green cards. That said, it must be conceded that the US is not the only country to clamp down on ‘birth tourism’.
The US itself remains divided along party lines on the issue, with Democrats favouring a more liberal citizenship regime. Democratic President Obama strongly advocated for liberal and humane citizenship policies. Under his administration, parents of children born in the US automatically secured the coveted US citizenship for their offspring. Republicans, however, smelled a rat—Hispanics were deliberately having children in the US to secure citizenship for the entire family, with parents gaining residency by riding piggyback on their US-born child.
President Trump’s executive order dated January 20—immediately after his inauguration for a second term—aimed at restricting birthright citizenship in the US has sparked several legal challenges and caused anxiety among immigrant families. For nearly 160 years, the 14th Amendment of the US Constitution has upheld the principle that anyone born in the country is a US citizen.
Trump’s supporters argue that, as part of his broader crackdown on migration, he is merely seeking to deny citizenship to children of migrants who are either in the country illegally or on temporary visas. However, the main objection to Trump’s latest move appears to be procedural—how can a mere executive order overturn long-standing constitutional provisions? Ultimately, the issue is likely to be resolved only after the US Supreme Court rules on the validity of Trump’s order.
How sacrosanct the 14th Amendment is can be seen in the 1898 Supreme Court decision United States v. Wong Kim Ark, which held that the only children who did not automatically receive US citizenship upon birth on US soil were those born to diplomats (who owe allegiance to another government), enemies present in the US during hostile occupation, individuals born on foreign ships, and members of sovereign Native American tribes. Therefore, if the Supreme Court insists on a proper constitutional amendment, Trump’s order may face rough weather.
Meanwhile, Democrat-led states are guarding their turf by obtaining a stay on the implementation of the executive order. The San Francisco-based 9th US Circuit Court of Appeals rejected the Trump administration’s request for an emergency order putting on hold a nationwide injunction issued by a federal judge in Seattle, blocking the president’s executive order. If allowed to stand, Trump’s order would, for the first time, deny more than 150,000 children born annually in the United States the right to citizenship guaranteed by the Constitution.
What are the international practices in this regard? Birthright citizenship, or jus soli (right of the soil), is not the global norm, though the US is one of about 30 countries—mostly in the Americas—that grant automatic citizenship to anyone born within their borders. In contrast, many countries in Asia, Europe, and parts of Africa adhere to the jus sanguinis (right of blood) principle, where children inherit their nationality from their parents, regardless of their birthplace. Some countries follow a combination of both principles, also granting citizenship to children of permanent residents.
In recent years, several countries have revised their citizenship laws, tightening or revoking birthright citizenship due to concerns over immigration, national identity, and so-called “birth tourism," where people travel to a country specifically to give birth. India, for example, once granted automatic citizenship to anyone born on its soil. However, concerns over illegal immigration, particularly from Bangladesh, led to restrictions. Since December 2004, a child born in India is only considered a citizen if both parents are Indian or if one parent is a citizen and the other is not classified as an illegal migrant.
Many African nations, which historically followed jus soli under colonial-era legal systems, later abandoned it after gaining independence. Today, most require at least one parent to be a citizen or a permanent resident. Citizenship is even more restrictive in most Asian countries, where nationality is primarily determined by descent, as seen in nations such as China, Malaysia, and Singapore.
Europe has also seen significant changes. Ireland was the last country in the region to allow unrestricted jus soli, but it abolished the policy after a June 2004 referendum, in which 79 per cent of voters approved a constitutional amendment requiring at least one parent to be a citizen, permanent resident, or legal temporary resident.
So, the opposition to Trump’s order is not due to its perceived injustice but rather its blatant and flagrant violation of the US Constitution. Meanwhile, his latest move to attract wealthy individuals who can afford to pay $5 million for the coveted US citizenship has drawn snide remarks—citizenship now comes with a price tag and is skewed in favour of the rich. Critics argue that his aversion to Hispanics would not exist if they were wealthy rather than job-seekers.
The writer is a senior columnist. He tweets @smurlidharan. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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