President Trump threatens to revoke birthright citizenship for children of foreigners, but it's not that easy

In an interview this week, President Donald Trump said he will sign an executive order to eliminate birthright citizenship for children of foreign nationals, stipulated as a right in the 14th Amendment of the U.S. Constitution.

Many media outlets quickly reported on what the President, who has not yet signed such an order, said, causing a great stir, indicating that this would affect thousands of children born in the United States to undocumented parents.

But before panic sets in, it is important to know that according to legal experts, repealing an amendment to the constitution is not easy and cannot be done with just a signature from the president.

What the 14th Amendment to the Constitution says

The first section 1 of the 14th Amendment clearly states that U.S. citizenship is automatically granted to any person born within the country and subject to the jurisdiction of the United States. This includes persons born in U.S. territories, including Puerto Rico, Guam and the Mariana Islands.

In legal terms, citizenship at birth is conferred by jus soli or "land entitlement" - the fact of being born on U.S. soil. There are some exceptions, including children of diplomats or hostile occupation forces who are born in the United States.

In the box below you can see the exact language of the English clause and its translation.

text Amendment 14

History of the 14th Amendment to the Constitution

The U.S. Congress passed the 14th Amendment in 1866 after the Civil War. The purpose was to grant descendants of African-American slaves rights to citizenship in the country of their birth.

The amendment overturned an 1857 Supreme Court decision resulting from the case Dred Scott v. Sandford.

The decision Dred Scott denied citizenship rights to black people - whether slave or free - whose ancestors were imported to the United States and sold into slavery. Dred Scott was an African-American slave. who took the fight for his freedom to the courts.

The 14th Amendment arose to grant the right of citizenship to black slaves, but expanded its scope in 1898 following a lawsuit by Wong Kim Ark, a man born in San Francisco of Chinese parents.

Dred Scott - Wong Kim Ark
Dred Scott and Wong Kim Ark.

Wong Kim Ark made a trip to China and when he returned to the United States in 1895 he was denied entry into the country, arguing that he was not a citizen, despite having documentation proving his birth in San Francisco. At that time, the Chinese Exclusion Act which denied Chinese foreigners citizenship by naturalization and to which their parents were subject.

Wong Kim Ark brought his case to court and the Supreme Court ruled in his favorThe 14th Amendment, holding that the citizenship language of the 14th Amendment encompassed the circumstances of his birth, setting the precedent for the interpretation of the clause.

This is the current basis for granting citizenship to most children born in the United States, regardless of the origin of their parents.

How to amend the U.S. Constitution

Changes can be made to the constitution through amendments, but it is not an easy process.

According to Article V of the Constitution, there are two ways of proposing and ratifying amendments to the constitution.

To propose amendments:

  1. Two-thirds of both houses of Congress may vote to propose an amendment.
  2. Two-thirds of state legislatures can ask Congress to call a national convention to propose amendments.

To ratify the amendments:

  1. Three quarters of the state legislatures must approve them.
  2. Ratification conventions in three quarters of the states must be approved.

Because of the complexity of the process, it would be difficult to propose and implement an amendment to the Constitution that would eliminate birthright citizenship for children of foreign nationals. If successful, it would probably not apply retroactively to persons who are already U.S. citizens.