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One of the most important actions amid the flurry of executive orders that followed President Donald Trump’s inauguration is the new administration’s attempt to revoke birthright citizenship.
The order and its import will probably prove mostly symbolic. It was immediately met with a spate of court challenges from the most prominent civil and immigrants’ rights groups in the country, as well as a group of more than 21 states and Washington, D.C. But while it’s extremely unlikely that the policies will survive those challenges, Trump’s order will still stand as a statement of values—a national about-face against immigration, period—that will do much to accomplish one of the administration’s ultimate goals of encouraging certain immigrants to leave the U.S., and discouraging future immigration as a general matter. The coming litigation over the proposal could also make it easier for conservatives to implement policies that restrict noncitizens from certain government benefits, like public schools.
Trump’s birthright order is notably titled “Protecting the Meaning and Value of American Citizenship.” It declares that the federal government will no longer consider babies born in the U.S. after February 19, 2025, to be American if neither parent is a citizen or green card holder. It also bars citizenship for kids born to parents who are here on temporary tourist, work, or student visas.
If the order passed legal muster, it would mean that the child of a couple who were brought into the U.S. unlawfully while they themselves were still children—i.e., a pair of so-called “Dreamers”—would have no citizenship rights, even if the parents had lived and paid taxes in the U.S. for 40 years. Similarly, a pregnant pair of graduate students who enter the country on a legal student visa and then find themselves seeking asylum because of conflict back home would give birth to a stateless child, subject to deportation. Those children would also lack the usual legal rights to attend public schools, to have required ID cards, and, as they grow, to vote, serve on juries, or hold a job. The lawsuits by the immigrants’ rights groups identify a number of clients who are now facing those kinds of situations.
The order purports to rewrite or revoke 70-year-old federal statutes that define who is a U.S. national at birth, without legislation from Congress; and to overturn more than 120 years’ worth of legal precedent, without a ruling from the U.S. Supreme Court.
Most importantly, the order is an attempt at a radical rewrite of the U.S. Constitution itself, seeking to flip a nearly 160-year-old Reconstruction Amendment—one of the most significant and impactful provisions in the founding documents—on its head. The 14th Amendment, which includes the Citizenship Clause, was adopted after the Civil War in order to reject the Supreme Court’s infamous Dred Scott ruling, which had held that descendants of Africans can’t be American citizens because they are inferior and unworthy; it established that all “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Since 1868, birthright citizenship has been the law of the land, and indeed a foundational and definitional principle of American society, as the self-proclaimed melting-pot nation of immigrants. There’s a strong argument that these values have changed in recent years, as the Democratic Party, too, has adopted the anti-immigration stance Republicans have long held.
The Trump administration appears to be gearing up to argue that people who are in the U.S. unlawfully are not “subject to the jurisdiction” of the country, and therefore can’t be citizens. One other potential and extremely radical argument is premised on a different Trump executive order, which officially declared that “an invasion is ongoing at the southern border.”
Let’s take a closer look at both of these in turn.
IN 2018, TRUMP ALLY MICHAEL ANTON argued in The Washington Post that the 14th Amendment’s “subject to” clause was never meant to establish birthright citizenship; instead, Anton said, the language was meant to “distinguish between people to whom the United States owes citizenship” (freed slaves) and “those to whom it does not,” which he said includes “children of immigrants who came here illegally.” Anton is also Trump’s pending nominee for a policy director position at the State Department.
For starters, an argument that people in the country unlawfully are not “subject to” our laws flies in the face of the entirety of the immigration apparatus: How can one be arrested by local police or Border Patrol, detained by federal officers and deputized private contractors, have the case adjudicated by U.S. agencies and U.S. immigration judges, and then get deported, perhaps back to a random country, without being subject to U.S. jurisdiction?
We can leave that aside for now.
In any case, Anton’s argument contradicts the plain language of the constitutional provision and a federal statute, the Supreme Court’s existing interpretations, and a prevailing consensus among legal scholars and experts, one that even other Trump allies agree with, including ultraconservative judges Trump has short-listed for nomination to the Supreme Court.
It seems highly unlikely that a majority of the Supreme Court would agree with any of the anti–birthright citizenship arguments.
“There are many constitutional law issues that liberals and conservatives don’t agree on,” Josh Blackman, a libertarian law professor at South Texas College of Law, told The Washington Post in October 2018. “Birthright citizenship is not one of them.”
“There is a broad consensus among legal experts that the key phrase—‘subject to the [U.S.] jurisdiction’—is conclusively resolved,” Blackman said, agreeing that the language applies to anyone required to obey U.S. law, except for Native Americans on reservations (which is not actually U.S. land), foreign diplomats in the country for official business (diplomatic immunity and other privileges), and enemy soldiers on U.S. soil (obviously). Blackman is a contributor to Project 2025, which lays out much of the current conservative movement agenda and the Trump administration’s priorities.
The Supreme Court unanimously affirmed that interpretation in a case called U.S. v. Wong Kim Ark, in 1898, which held that a child born in the U.S. to Chinese parents is automatically a U.S. citizen. The Court reaffirmed that holding in 1982, in Plyler v. Doe, ruling that Texas can’t keep kids of undocumented immigrants out of public schools (keep this one in mind); and again in 1985, ruling unambiguously that children born in the United States are citizens.
A decade later, the Justice Department investigated the legal issues around birthright citizenship and concluded that the “constitutional guarantee of citizenship to children born in the United States to alien parents has consistently been recognized by courts, including the Supreme Court, and Attorneys General for over a century.”
James Ho, a Fifth Circuit appeals court judge who has been short-listed by Trump as a potential Supreme Court justice nominee, also wrote an essay in 2006 in which he concluded that the text of the clause, the original understanding, and the court interpretations since it was enacted all establish that the 14th Amendment “plainly guarantees birthright citizenship to the U.S.-born children of all persons subject to U.S. sovereign authority and laws.”
In short, “a constitutional amendment is … the only way to restrict birthright citizenship,” as Ho concluded, and an executive order doesn’t suffice.
Ho has pivoted to a different argument since Trump’s election, taking the position that “birthright citizenship obviously doesn’t apply in case of war or invasion.” This change of heart was perhaps done in anticipation of the second Trump administration’s plans, and a potential open seat on the high court. As it happens, Ho explained his change of heart in an interview with Blackman.
But Ho mischaracterized the analysis and legal holdings in the Wong Kim Ark case, as constitutional scholar and Georgetown Law professor Stephen Vladeck has pointed out. The language in the ruling actually referred specifically to children born to “an alien enemy in hostile occupation of the place where the child was born” (emphasis mine).
Despite Trump’s invasion declaration, an argument that America is under military occupation by Mexico or some other country, or that Dreamers who may have been brought here as children are actually occupying forces, is … a bit of a stretch.
Moreover, as a practical matter, ending birthright citizenship would immediately supersize the undocumented population, creating a much more massive underclass of people who may not be able to work legally, and are restricted from participating or contributing to their communities in other important ways.
SO HOW MIGHT THINGS shake out here?
All in all, it seems highly unlikely that a majority of the Supreme Court would agree with any of the anti–birthright citizenship arguments, despite the Court’s recent willingness to issue other radical rulings and to overturn decades of precedent when it favors conservatives or Trump. Here, the doctrine at issue is a seminal provision of the U.S. Constitution itself, more than a century old (unlike the ruling in Roe v. Wade, for example); and there is hardly even a passable normative argument that “subject to the jurisdiction thereof” means something other than what virtually every lawyer and justice has thought it did for 100-plus years.
This would also give the Court’s conservatives a chance to show some semblance of independence from the president who installed three of them, even if they continue to permit the administration’s other dubiously legal actions.
Still, Trump’s anti-immigration orders will create confusion and instill fear among many immigrant communities, and will likely convince some people to either self-deport or refrain from trying to immigrate to the U.S.
In addition, some Trump allies and conservative politicians have previously expressed a willingness to overturn the Supreme Court ruling requiring states to educate all children, and the lawsuits challenging Trump’s order could potentially open the door to revisiting that holding.
Trump’s citizenship executive order may be mostly symbolic. But it is symbolism of the highest order, seeking to redefine the very meaning of “American,” how the country sees itself, and the image it projects to the rest of the world. Although it’s quite likely to be struck down by the courts, the real action here might simply be the widening of the Overton window in this country’s national immigration policy, cementing our turn from the nation that famously welcomed the tired, huddled masses from the world over, to one that now slams the gates shut, just as loudly.