President Donald Trump recently revealed plans to sign an executive order that would end birthright citizenship for babies born in the United States to parents who aren’t citizens. Does that put his own son at risk?
"Fun fact," starts a post that appeared on Facebook on Nov. 1. "Barron Trump was born in March 2006 and Melania wasn’t a legal citizen until July 2006. So under this executive order, his own son wouldn’t be an American citizen."
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Let’s start with Trump’s youngest child. Barron, who turned 12 on March 20, was indeed born in March 2006. His mother, Trump’s wife, Melania, is from Slovenia. She was working in New York as a model and dating Trump when she applied for a visa in 2000, according to the BBC. She secured a green card when her application was approved the following year. On March 20, 2006, she gave birth to Barron in New York and she became a U.S. citizen four months later in July 2006.
The news about Trump targeting birthright citizenship was reported by Axios, which is airing an exclusive interview with the president today, Nov. 4. A story including excerpts of that conversation was published on Axios’ website on Oct. 30, and while the article discusses when Trump has the power to use an executive order, it doesn’t explain what, exactly, such an order would say in this case.
On the campaign trail in 2015, Trump pitched a plan to end birthright citizenship for children of illegal immigrants. But we don’t yet know the details of a potential executive order to end birthright citizenship, including whether it would apply to children with one parent who is a citizen and another who isn’t.
The 14th Amendment of the U.S. Constitution guarantees that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside."
The amendment was ratified in 1868 and was intended to extend citizenship to former slaves who’d been recently freed following the Civil War. The amendment goes on to forbid states from denying anyone "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws."
Barron Trump, who was born on U.S. soil, is a citizen of the United States both because of the 14th Amendment and regardless of it: Had he been born abroad, he would still be considered a citizen. The U.S. Citizenship and Immigration Services has a policy that a child born outside of the United States becomes a citizen at birth if at that time one parent is a foreign national and the other is a U.S. citizen who has been physically present in the country for at least five years, including at least two years after that person turned 14.
Wrote Corey Brettschneider, a professor of political science at Brown University, in a Nov. 3 piece for The Guardian, "An executive order cannot reverse the guarantee of citizenship to anyone born in the United States that is enshrined in the constitution…Contrary to Trump’s assertion, the constitution’s text and values and Supreme Court decisions show he cannot unilaterally revoke birthright citizenship. Nor can Congress pass a law to do so. The idea is enshrined in the constitution and can only be changed with a formal amendment."
In order for a constitutional amendment to be approved, it must be proposed by a two-thirds majority in both the House and Senate. It would then need to be ratified by three-fourths of the states.
Vice President Mike Pence stated in an Oct. 30 interview with Slate that Trump is looking at citizenship law broadly and suggested that the matter might need to go before the nation’s highest court: "We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally," Pence said.
House Speaker Paul Ryan, meanwhile, has dismissed the idea that Trump could end birthright citizenship with an executive order: "I’m a believer in following the plain text of the constitution, and I think in this case the 14th Amendment is pretty clear," Ryan said on Oct. 30, "and that would involve a very, very lengthy constitutional process."
A Facebook post says that "under an executive order" by President Trump to revoke birthright citizenship, Trump’s son Barron "wouldn’t be an American citizen."
We don’t yet know either the details, scope or effect of the executive order Trump is planning.
But we do know that the 14th Amendment guarantees Barron Trump citizenship. And we do know that even if Barron Trump had been born elsewhere, he would be a U.S. citizen because his father is a U.S. citizen who had been physically present in the U.S. for five years prior to Barron’s birth.
Scholars suggest that it would take far more than an executive order to undo birthright citizenship. It is likely that any executive order that attempts to do so would encounter legal challenges.
As PolitiFact’s own reporter Louis Jacobson wrote on Oct. 30, "The most that Trump could do is sign such an executive order with the clear expectation that opponents would sue to block its implementation. After that, it would be up to the courts to decide the ultimate outcome."
We rate this claim False.