US president Donald Trump yesterday issued an executive order to end birthright citizenship for the children of unauthorised immigrants. So what is birthright citizenship and can Trump’s ban actually take effect?

FactCheck takes a look.

What is birthright citizenship and how many children have it?

As it stands, anyone born on US soil has citizenship rights under the US constitution – what is known as birthright citizenship.

These rights are granted by the 14th amendment, which was introduced in the 1860s to ensure citizenship rights for formerly enslaved people. 

Throughout the years, the supreme court has interpreted the wording of the 14th amendment to mean that everyone born on US soil, pretty much without exception, has citizenship. 

In a landmark case in 1898, the court ruled that a man called Wong Kim Ark born in California to Chinese immigrants could claim citizenship. This legal interpretation has held for the last century.

According to 2016 estimates by the Migration Policy Institute, around 4 million US-born children at the time were born to at least one parent who was an unauthorised immigrant. 

It’s not clear how many US citizens in total have benefited from birthright citizenship, though it would be a much higher number.

Trump had promised throughout his presidential campaign to end birthright citizenship – but legal experts expressed scepticism, given that there is strong legal precedent affirming these rights.

Why is Trump trying to abolish birthright citizenship?

Despite this long-standing constitutional protection, Trump yesterday issued an executive order to end birthright citizenship for the children of undocumented immigrants.

Trump and his allies have claimed that birthright citizenship encourages what they call “birth tourism” – claiming that people deliberately travel to the US when pregnant in order to give birth there, gaining citizenship for their child and also giving them a stronger chance of gaining residency via their child. 

What does Trump’s executive order say?

An executive order is a signed directive from the president telling the federal government how he wants it to act. It has the force of a law, but it must be compatible with the constitution.

This particular order states that a person born in the US whose mother is there “unlawfully”, and whose father is also not a citizen or lawful permanent resident, will not be able to get documents recognising their citizenship.

The order is to take effect after thirty days, and will only affect future births – in other words, people who already have citizenship by birth can’t have it taken away.

Trump’s order explicitly argues that the 14th amendment was never intended to apply to children of unauthorised immigrants. 

Will Trump’s birthright ban actually work?

It’s been reported that the Trump administration expects the executive order to be challenged in court. 

Indeed the American Civil Liberties Union – a non-profit organisation which often takes cases against perceived human rights violations – has already brought a legal challenge in New Hampshire that could eventually reach America’s top court.

It’s not impossible that the supreme court would break with previous interpretations of the 14th amendment in order to find in Trump’s favour in this case or others. Though legal experts generally seem to think this is unlikely.

The court – which currently has a majority of Republican judges, three of whom are Trump appointees – has already overturned decades of legal precedent in other matters (like abortion rights) ultimately establishing more conservative interpretations of certain passages in the constitution.

Could he find another way?

If the supreme court ruled against Trump to uphold birthright citizenship, he might try to introduce a new constitutional amendment.

This would change the actual wording of the constitution itself. But this is a years-long process which would require two thirds of Congress to propose the amendment, and three quarters of state legislatures to ratify it. 

Again, most legal experts believe it’s unlikely Trump would manage to get such an amendment passed.

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