The Potential Implications of Trump’s Birthright Citizenship Order

Reasonable Doubt
With David Lesperance

A contrarian expert on contingency plans for the wealthy delivers uncomfortable truths.

Hours after taking the oath as the 47th President of the United States, Donald Trump signed an executive order, Protecting the Meaning and Value of American Citizenship, to end automatic citizenship for children born in the US.

Most legal experts say the 14th Amendment of the US Constitution guarantees birthright citizenship, regardless of the citizenship of their parents.

The amendment’s Citizenship Clause declares “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.”

Trump’s executive order focuses on the second requirement of the Citizenship Clause – that a person be born “subject to the jurisdiction” of the US – and says this clause intended to limit birthright citizenship to lawful residents.

The order aims to end birthright citizenship for children of immigrants if neither parent is a US citizen or a permanent resident. Trump argues that revoking birthright citizenship will curb illegal migration to the US.

What is the pushback?

More than 20 state Attorneys General immediately sued to block the order. They argue that a President cannot unilaterally rewrite the Constitution’s 14th Amendment guarantee of birthright citizenship to every baby born in the US.

They point to the 1873 Supreme Court Wong Kim Ark decision, which established the precedent of birthright citizenship regardless of the parent’s legal status.

The Supreme Court ruled that the San Francisco-born son of Chinese nationals had citizenship and could re-enter the country after an international trip.

A minority of legal scholars support Trump’s position, arguing that the Wong Kim Ark decision misinterpreted the Constitution. They contend that unauthorized migrants are not “subject to the jurisdiction” of US law since they cannot vote and lack certain rights afforded to Americans.

This interpretation suggests the 14th amendment does not apply to these migrants or their children.

Who is impacted by the Executive Order?

The Executive Order identifies two categories of individuals born in the US who Trump claims do not automatically receive citizenship. First, babies born to mothers unlawfully present in the US whose fathers were not US citizens or lawful permanent residents at the time of birth.

The second is a baby whose mother’s presence in the US “was lawful but temporary” and whose father was not a US citizen or lawful permanent resident at the time of that baby’s birth. In other words, the order doesn’t just apply to children born to undocumented immigrants. “Lawful but temporary” status includes people “on a student, work, or tourist visa.”

Many of these individuals maintained legal status in the US but had not acquired green cards when their children were born.

Enforcing the Executive Order

The administration plans to withhold documents, including passports, from people it deems ineligible for citizenship to enforce the order.

The order states the administration will reject documents from local or state governments that recognize the citizenship of children it deems ineligible.

The administration has not explained which authority – hospitals, health insurance companies, local or state governments, federal officials, or others – would review parents’ legal documents to determine their children’s citizenship eligibility.

The Trump administration’s directive to federal agencies denies citizenship-affirming documents like Social Security cards and passports to children of undocumented immigrants and temporary visitors, effectively cutting them off from government services, including public schools, healthcare, nutrition, and housing benefits.

Will the executive order ultimately kill birthright citizenship?

Will Trump succeed? Most legal experts believe a president cannot rewrite the 14th amendment or 100 years of legal precedent through an executive order, but Trump might succeed with support from sympathetic judges.

While lower courts will likely side with the states, a Supreme Court appeal could determine the outcome. The conservative majority has shown a willingness to overturn legal precedent in recent terms.

Amanda Frost, a University of Virginia law professor and expert in immigration and citizenship law believes the Supreme Court might find arguments for restricting birthright citizenship persuasive, calling it “no longer laughable.”

Precautions those affected should take while awaiting the Supreme Court decision

The Supreme Court’s ruling on the executive order’s constitutionality and the Wong Kim Ark precedent will not prevent significant disruption to many lives. Those potentially affected should take these precautionary steps:

1. Secure US passports immediately before the passport bureaucracy implements the executive order
2. Secure passports from parents’ home countries to maintain documentation
3. Examine family history for claims to lineage citizenship
4. Review eligibility for residence in other countries like Canada
5. Research qualification for Spanish residence, which allows a shortened naturalization period of 2 years for nationals of Latin American countries, Andorra, the Philippines, and Equatorial Guinea

These last four steps become critical if the Supreme Court upholds the order’s constitutionality.

The law is the law

Whether one believes birthright citizenship should be US law is irrelevant. Until the Supreme Court decides otherwise, it remains law through the 14th amendment and the Wong Kim Ark decision, along with many subsequent cases that upheld it.

Trump sees no downside in issuing this executive order, similar to his claim of presidential immunity last year. If the Court strikes it down, he can claim he attempted reform but faced an incorrect ruling.

He can also demonstrate that while he could not revoke birthright citizenship, he disrupted citizens’ lives temporarily.

If the Supreme Court defies precedent and upholds the constitutionality of the executive order, Trump can claim victory for taking action where others hesitated.