It’s hard to take President Trump’s threat to end birthright citizenship through an executive order seriously. Coming as it does during the last days before the midterm elections, it sounds like an echo of his presidential campaign when he proposed a border wall to animate his base. It’s likely that he hopes to use birthright citizenship the same way.
That doesn’t mean he won’t try, but any attempt would almost certainly be challenged in the courts. The 14th Amendment was written in 1797 and begins, “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,” and more than 100 years of generally respected precedent will make it hard for judges who claim to be textualists who respect precedent to side with him.
Among them are the 1898 decision in United States v. Wong Kim Ark, which explicitly affirmed that the children born in America to foreign-born parents were citizens at birth. Supreme Court Justice Horace Gray wrote in his decision:
there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.
The body of precedent that supports birthright citizenship has sustained the concept through a number of challenges like Trump’s, including one in 1996 when ending birthright citizenship was written into the Republican Party Platform before its convention. “We support a constitutional amendment or constitutionally-valid legislation declaring that children born in the United States of parents who are not legally present in the United States or who are not long-term residents are not automatically citizens,” the platform read. The language was removed in 2000.
Conservative lawyers who argue that birthright citizenship does not apply to the children of foreign-born parents contend that the phrase “subject to the jurisdiction thereof” excludes them. They believe that it means that the roots the children have through their parents make them subject to the jurisdiction of another country. The more common interpretation is that the qualifier refers narrowly to diplomats and those engaged in the foreign exercise of power, such as soldiers.
“There are a couple of scholars that are pushing [that theory], but it’s not a mainstream view even in conservative circles,” said Corey Brettschneider, a political science professor at Brown University. “That’s because it’s kind of wacky.”
Speaker of the House Paul Ryan similarly dismissed the idea that Trump could sign away birthright citizenship with an executive action. "You cannot end birthright citizenship with an executive order," he said. “You know as a conservative, I'm a believer in following the plain text of the Constitution. And I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”
If birthright citizenship were to end, the impact would be felt far beyond the immigration conversation. Doing away with it would open the question of how one does become a citizen. If not by birth, then how? If the idea of ending birthright citizenship is to stop people from being dependent on the government, how might that affect children born to parents on welfare? If the idea is to preserve “American culture,” who decides what that culture is and who contributes positively to it?
Doing away citizenship by birth would almost certainly create social and political divisions based on who did and did not qualify for citizenship—an idea at odds with America’s conception of itself. Lawyer Marshall Fitz argues that the 14th Amendment is crucial because it “categorically rejects the notion that America is a country club led by elites who get to pick and choose who can become members.”
President Trump’s ability to skitter from radical solution to radical solution is alarming, and his willingness to pursue unpopular ideas in the face of legal advice from those around him means that nothing can be taken for granted. The current makeup of the Supreme Court in the abstract means that he has a better chance of amending the constitution with an executive order than he might have under other circumstances. But the details count—hopefully—and so far, Justice Neal Gorsuch has been suspicious of apparent expansions of government power. It’s hard to imagine that he would grant the president such a radical expansion of his authority.
So Trump’s proposal to end birthright citizenship is most likely little more than an effort to move the political conversation away from health care and the impact of his own rhetoric and toward immigration, which got his base out to vote in 2016. The proposal is likely of a piece with his announcement a few weeks ago that Congress was going to give the middle class a 10 percent tax cut, even though Congress was not in session.
Still, Trump’s willingness to commit means that he certainly could go forward with his proposal, and people need to be prepared for him do so. We need to be to fight his efforts because birthright citizenship applies to everyone born in America, not just immigrants. Birthright citizenship isn’t going anywhere any time soon, but people need to understand that it is central to the American project.