Trump's birthright citizenship order likely to face legal hurdles, say experts

Retaliation is not the only or even the most likely response to Trump, no matter how broadly he finally delivers on his threats

Newly-elected US President Donald Trump’s push to end birthright citizenship through an executive order is expected to face legal challenges as constitutional protection under the Fourteenth Amendment stands firm, say legal experts.

“The relevant provision of the Fourteenth Amendment was already interpreted in an 1898 Supreme Court case, United States v. Wong Kim Ark, which held that under the Fourteenth Amendment, children born in the US are US citizens, even if their parents are immigrants,” Daniel Low, partner of US-based civil litigation firm Kotchen & Low LLP, told Moneycontrol.

The executive order signed on January 20 calls for children born in the US to acquire citizenship, only if at least one parent is a US citizen, a legal permanent resident, or a member of the US military. The order also targets “birth tourism,” where foreign nationals travel to the US to give birth and secure US citizenship for their children.

President Trump has long criticised the practice, describing it as "ridiculous," and has commented on it, along with his broader immigration views in the run-up to the elections.

Kotchen said that an executive order cannot repeal birthright citizenship. “I would expect that the legal challenges will lead to a stay of President Trump’s birthright citizenship order and that those challenges will ultimately be successful on merits,” Low added.

Under this amendment, anyone born on American soil is automatically granted US citizenship. Ratified in 1868, this provision was established to ensure citizenship for all individuals born in the US, irrespective of their parents' immigration status.

This change, if implemented successfully, would be detrimental, particularly for the Indian-American community. Over 4.8 million Indian-Americans are living in the US, with a significant proportion born in the country, according to the US Census.

Once the policy is rolled out, children born to Indian nationals on temporary work visas, such as H-1B or those waiting for green cards, would no longer automatically gain US citizenship.

Staffing firm TeamLease Digital’s Chief Executive Officer Neeti Sharma believes that, by denying automatic citizenship to US-born children, the order risks discouraging skilled Indian professionals, especially in STEM (Science, Technology, Engineering, and Mathematics), who contribute significantly to America’s innovation and economic growth.

“While the administration cannot simply force Indians on H-1B visas out of companies immediately due to strict labour laws, contractual obligations, and the vital role they play in critical industries like tech and healthcare, denying automatic citizenship to their US-born children creates uncertainty for their future," Sharma told Moneycontrol.

Also read: Explained: How Trump's move to end birthright citizenship will impact over 1 million Indians in green card queue

The H1-B Debate

The birthright citizenship debate comes right after the earlier hot topic of H1-B visas.

H-1B is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations, such as STEM and IT. Indian tech companies, such as Tata Consultancy Services (TCS), Infosys, HCL Technologies, and Wipro, send their employees to the US on this visa.

Trump's appointment of Indian-American venture capitalist Sriram Krishnan as Senior Policy Advisor on Artificial Intelligence (AI) in December started a heated argument between several MAGA (Make America Great Again) supporters and tech leaders.

After Trump supporters and businessmen Elon Musk and Vivek Ramaswamy defended the existing visa system, Trump expressed support for skilled foreign worker visas in a recent interview.

Also, read: Explainer: Why Sriram Krishnan’s White House entry shifted focus to immigrant work visas