In what is almost certainly an attempt to divert the conversation away from his failures on healthcare and poor public support for his tax cuts, President Trump announced his intention to rescind birthright citizenship from the children of undocumented immigrants born in the US. In an even more brazen move that goes against his own party’s orthodoxy on limiting executive authority, Trump also declared that he will seek to do this through an executive order. This is a bold, and likely desperate, attempt to frame the midterm debate around xenophobia, a preferred topic for the president. It’s also likely unconstitutional, but in today’s America, that doesn’t mean it can’t happen.
Birthright citizenship is derived from the “Citizenship Clause” of the Fourteenth Amendment to the US Constitution. This amendment, passed in the wake of the brutal civil war, states that “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.” Like most constitutional scripture written before modern times, the drafters’ choice of words and punctuation in this clause can be confusing and even misleading, even to current scholars.
Still, the US Supreme Court has spent decades expounding on the clause; many rulings have suggested that birthright citizenship does extend to the native-born children of undocumented immigrants. In 1898’s U.S. v. Wong Kim Ark, for example, the Supreme Court upheld the citizenship of a child born on US soil to Chinese citizens merely residing here (and not engaged in Chinese government-related business). In 1985’s INS v. Rios-Pineda, the Court referred to the children of undocumented immigrants as US citizens by right of birth.
The Court, however, has never expressly held that the Citizenship Clause grants citizenship to the children of undocumented immigrants. Wong Kim Ark’s detractors argue that the parents in question were documented residents, and that the citizenship discussion in Rios-Pineda was dicta — a passing reference unessential to the actual holding and thus carrying no precedence. This means there may exist some wiggle room for differing interpretations of the Citizenship Clause.
Relying on this interpretive wiggle room, supporters of revoking birthright citizenship of the children of undocumented immigrants rely on that conservative fall-back, “originalism” — the legal philosophy that purports to interpret the Constitution based on the intent of those who wrote it and its amendments at the time of their drafting. The originalist argument, as Trump tweeted, is based on the idea that the portion of the Citizenship clause reading “and subject to the jurisdiction thereof” has been misinterpreted from its original intent.
Proponents of this position, such as White House Aide Michael Anton, point to a quote from one of the drafters of the Fourteenth Amendment, Sen. Jacob Howard of Michigan. During deliberations on the Citizenship clause, Sen. Howard stated that the amendment excludes from citizenship “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Modern conservatives point to this as evidence of the intent to deny citizenship to US-born children of undocumented “aliens.”
Yet, going by an originalist reading of the clause, Anton and others are engaged in a massive misinterpretation of what Sen. Howard and the other drafters intended. Most conservatives insert an “or” into Sen. Howard’s quote, turning it into “persons born in the United States who are foreigners, aliens [or] who belong to the families of ambassadors or foreign ministers.” This is extremely dishonest as it ignores the context of the original debate around exclusions to birthright citizenship in the Fourteenth Amendment: Native Americans.
At the time the Citizenship Clause was being drafted, most Native Americans were not US citizens; as members of quasi-independent tribal nations, they were not subject to US law. If a tribal subject harmed a US citizen, they couldn’t be brought to court. All the US citizen could do was petition the US government, which would then petition the tribal government to which the individual belonged, for recompense. This is the same legal concept that grants immunity to diplomats and foreign officials and their families while on US soil.
The drafters of the Citizenship Clause wanted to avoid giving citizenship to the children born of Native peoples on US soil, who were inherently not subject to US law. While all Native peoples were granted full US citizenship decades later, the concept of “diplomatic immunity” survives to this day, and it’s why the children of diplomats born on US soil are not considered US citizens — they’re not subject to the “jurisdiction” of the US government. The Citizenship Clause had, and still has, nothing to do with immigrant status, nor was it meant to be predicated on whether a child’s parents were citizens of a foreign nation. It was meant to turn on the status of a child’s parents as representatives of, and therefore subjects to, a foreign power.
Apply this rationale to US-born children of undocumented immigrants, it becomes apparent immediately why denying them coverage under the Citizenship Clause makes no sense. Under current law, if an undocumented immigrant or their US-born child were to harm a US citizen, the US citizen wouldn’t have to petition the government of the immigrant’s native country for recourse; they could simply sue the undocumented offender in US court. That’s because an undocumented immigrant and their US-born children are, in fact, subject to US law. If you brought that undocumented immigrant or their child to US court, they’d still have certain constitutional rights despite their immigration status! This is clearly different from the “original” intent.
There’s no logical way to argue, therefore, that undocumented immigrants or their children are not subject to US jurisdiction. To argue otherwise would realize conservatives’ greatest nightmare: undocumented immigrants able to assault US citizens with relative impunity, lest the US government need to petition the native country of every suspect or offender. Children of refugees, who are often classified as “stateless” and thus not subject to any foreign power, would also still be protected by the Citizenship Clause. This would mean that many prominent European conservatives — themselves descended from illegal immigrants, including, perhaps, Melania Trump and her son — would suddenly find themselves without US citizenship. You can almost smell the conservative about-face.
Yet, putting this ridiculousness aside, we must confront two sobering realities.
First, the current Supreme Court might uphold a narrowing of the Citizenship Clause, even if it upends literally over 100 years of precedent, even it it were unconstitutional.
Second, stripping people of their citizenship is often one of the first steps taken by tyrants and authoritarians before an ethnic or ideological purge. The Supreme Court, now further radicalized by the appointment of Justice Brett Kavanaugh, has already shown a propensity toward stricter immigration laws. This means the best hope for a legal argument would be the Supreme Court deciding that a change to the Citizenship Clause would only be possible by the Congress, not by executive order. This would all but kill Trump’s plan, as there aren’t enough Republicans (let alone Democrats) in Congress who’d support stripping people of their citizenship. Still, as we saw with the Muslim ban, the Supreme Court has become increasingly reluctant to challenge executive authority.
Trump’s plan would be horrifying: history is littered with despots who delighted in stripping minority groups and government critics of their citizenship and their rights. Early on, Hitler stripped Jews of German citizenship. The Soviet Union famously set up political committees entirely devoted to stripping citizenship from political dissidents. Many brutal Middle East regimes also strip citizenship from political dissidents. Given that Trump has stated that public dissidents should be stripped of citizenship, it’s safe to assume how thoroughly he would abuse such a power, if granted to him.
Trump and his supporters are relying on a plethora of inaccurate interpretations and debunked legal arguments to push an astoundingly fascist policy favored by some of the worst actors in human history. Given America’s sad current political and judicial climate, it doesn’t mean that the policy won’t be enacted. It very well could be.