Coming from Donald Trump’s mouth, the current debate over ending birthright citizenship sounds like the latest in a series of outlandish proposals thrown out by the recalcitrant billionaire to stir the support of an anti-immigrant base.

Trump’s plan was even too much for Bill O’Reilly, who told him, “That’s not going to happen because the 14th Amendment says if you’re born here, you’re an American and you can’t kick Americans out.”

But Trump’s idea to end birthright citizenship didn’t come out of nowhere. For years, legal minds on the far right have been laying out a plan to stop granting citizenship to children born on U.S. soil regardless of their parents’ legal status.

Their plan rests on the willingness of state or national lawmakers to push through a constitutionally questionable law in the hopes that the conservative Supreme Court will take it as bait to scale back the 14th Amendment. Crazier things have happened in the John Roberts court.

“This notion that the 14th Amendment guarantees citizenship to anyone who has happened to be born on U.S. soil no matter how they’re here — they’re just wrong,” said Chapman University School of Law Dean John Eastman, who has led conservative legal fights on everything from gay marriage to reining in the Supreme Court.

The House Judiciary Committee held hearings on the issue in the spring under the title: “Birthright Citizenship: Is It The Right Policy For America?” Eastman testified at the hearing in support of ending birthright citizenship and told TPM this week that criticisms that “Trump’s idea is silly because it would take a constitutional amendment — that’s not true.”

Trump may have pushed he issue to the forefront of the GOP presidential primary, but even before he included the proposal on his immigration policy paper this week, the issue was simmering on the fringes. In May, former Sen. Rick Santorum (R-PA) wrote in an op-ed that “only children born on American soil where at least one parent is a citizen or resident aliens is automatically a U.S. citizen.” Just last week, New Jersey Gov. Chris Christie (R) was calling for the 14th Amendment to be “re-examined.” Gov. John Kasich pushed for ending birthright citizenship while in Congress and said he supported changing the practice in 2010, before reversing his position this summer.

Republican presidential candidates who say they oppose ending birthright citizenship have been able to do so under the cover that it’s not worth the trouble of changing a constitutional amendment.

“There are like 10 things I would change in the Constitution with a magic wand,” Former Gov. Jeb Bush (R) said on the birthright question, before later backtracking on the remark.

“I have to live with reality. Reality is it takes at best years, probably decades to deal with this 14th Amendment issue,” former Texas Gov. Rick Perry (R) said.



The 14th Amendment — which includes an assortment of weighty rights like due process and equal protection — says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

But according to Kansas Secretary of State Kris Kobach, the architect of some of the country’s harshest anti-immigration laws, the phrase “subject to the jurisdiction thereof” confers automatic citizenship only to some subset of children born on U.S. soil.

“There’s some people excluded, because that’s what the words ‘subject to the jurisdiction’ mean and the Supreme Court has never had an occasion [to examine] what that means, and to specifically look at the question of the children of illegal aliens,” Kobach told TPM. “Any justice who sought to come to the conclusion that the Constitution requires citizenship for the children of illegal aliens would have to explain what the words ‘subject to the jurisdiction thereof’ mean, and that’s a very difficult task for them to do.”

He suggested Congress propose a law limiting birthright citizenship to the children of citizens and permanent residents.

“For lack of a better word, the ‘open borders interests’ are probably going to challenge anything Congress passes in this regard and they will see if they can draw a good judge and probably hope that they don’t go to the U.S. Supreme Court,” Kobach said. If the issue did get to the Supreme Court, he said he was “confident” it would be upheld.

Bills proposing to end birthright citizenship have been introduced on a fairly regular basis since the 1990s. In just the last year, Rep. Steve King (R-IA) and Sen. David Vitter (R-LA) have introduced legislation to limit birthright citizenship to only certain children depending on their parents. An earlier version of Vitter’s bill was co-sponsored by presidential candidate Sen. Rand Paul (R-KY) in 2011.

King acknowledged that his proposal would likely be litigated, but that a “constitutionally sound” law would pass in the courts.

Past attempts to limit birthright citizenship through legislation have been widely called unconstitutional. In addition to the plain text of the Constitution, legal scholars point to the Supreme Court’s decision in 1898’s United State v Wong Kim Ark, which reaffirmed the right of citizenship for U.S.-born children regardless of their parents’ legal status.

But birthright opponents say that the decision only applies to the children of permanent residents and the opinion’s broader language regarding birthright citizenship is merely “dicta,” as Eastman put it.

State lawmakers have proposed anti-immigrant legislation with the explicit purpose of getting the Supreme Court to chip away at the 14th Amendment, as was the case with a failed 2011 bill in Arizona.

So far conservative lawmakers haven’t been able to advance the strategy, with some Republicans admitting the likelihood of success is not worth the legal costs.

However, for birthright critics, this is the wrong approach:

“We ought not anticipate an erroneous decision from the court on the front end,” Eastman said. Trump echoed that strategy, saying he wouldn’t wait to pass a constitutional amendment but would go straight to the courts to see if U.S.-born children of undocumented immigrants are in fact citizens.

“I’d much rather find out whether or not anchor babies are actually citizens,” Trump said Tuesday. “We’re going to test it out.”