Trump Tests the High Court’s Resolve With Birthright Citizenship Order

The president of the United States does not have the lawful power to end birthright citizenship. That did not stop President Donald Trump from trying to do just that in one of his first executive orders on Inauguration Day. The order itself is strangely written—partly out of necessity and partly out of ideology. If the Constitution’s words still matter, it will fail in the federal courts.

The order, titled “Protecting the Meaning and Value of American Citizenship,” seeks to redefine the Fourteenth Amendment. The amendment’s language on citizenship is straightforward: “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.” The “subject to the jurisdiction” exception is typically taken to mean the children of foreign diplomats.

In the Trump administration’s telling, however, everyone’s been getting it all wrong for the last 150 years. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” the order stated. “Consistent with this understanding, the Congress has further specified through legislation that ‘a person born in the United States, and subject to the jurisdiction thereof’ is a national and citizen of the United States at birth.” Accordingly, it laid out additional categories of American-born citizens whom it hopes to exclude.

The first and most important thing to note about the order is that it is not retroactive. Nobody currently living in the United States is affected by it at this moment, no matter their parentage or lawful presence. Instead, it says that it “shall apply only to persons who are born within the United States after 30 days from the date of this order.” In other words, the first children affected by it will be born on or after February 19.

From there, the order says it applies to any child whose mother “was unlawfully present in the United States” or “whose mother’s presence in the United States was lawful but temporary,” so long as the father is also neither a U.S. citizen nor someone with lawful permanent status. In other words, a child born to at least one parent with lawful permanent residence or U.S. citizenship would be unaffected by its restrictions. (The emphasis on the mother’s presence may be meant for cases where a father is not listed on birth records.)

The overall intent appears to be to transform American citizenship law from jus soli—a Latin term for when children acquire citizenship from the soil on which they are born, so to speak—to a solely jus sanguinis system where citizenship is passed down solely by dint of ancestry and blood. That would represent a sharp break with historical practice and shift the U.S. towards the Old World’s approach to nationality.

Trump and his allies have long complained about the children of undocumented immigrants—that is, the children of people who did not lawfully enter the United States. “Under Biden’s current policies, even though these millions of illegal border crossers have entered the country unlawfully, all of their future children will become automatic U.S. citizens,” he complained in a video post on Truth Social last year. The exact size of this population is unknown; some immigration-policy groups estimated that upwards of 4.4 million children in the United States lived with at least one undocumented parent in 2018.

But the order’s terms go well beyond that group to cover any child born to parents who did not have green cards or U.S. citizenship at the time, even if they were otherwise lawfully present in the country. A child born to two H-1B visa recipients in Silicon Valley, or to two student-visa recipients at Ohio State University, or to two H-2A farm workers in a Florida citrus farm would be affected by the order. It would also apply to children born to parents who are in the country under the Temporary Protected Status program. Since the number of legal immigrants is much larger than the number of undocumented ones, that could amount to tens of thousands of births each year.

A hypothetical example is illustrative here. If the executive order applied retroactively, it would almost certainly cover former Vice President Kamala Harris. She was born in 1964 to parents who were lawfully residing in California at the time but were not U.S. citizens. Harris’s India-born mother was in the country on a student visa and did not obtain a green card until 1968. Her Jamaica-born father arrived in 1961 and almost certainly did not have a green card by the time she was born. (He eventually obtained one and became a naturalized U.S. citizen in 2015.)

The order may not have been crafted with Harris in mind. (If it had been, it would apply retroactively.) It also can’t be ruled out after some of Trump’s top legal allies, including January 6 mastermind John Eastman, previously argued that Harris was not a birthright citizen and thus ineligible for the presidency. Either way, it underscores how the order can cover people who have never known any life other than within the United States and who are culturally and socially woven into the fabric of American life.

So what are the practical effects? This is where things get murky. The Trump administration is somewhat limited in how it can target people without birthright citizenship. Birth certificates and other vital records are generally issued by state and local governments, not the federal government. (There are rare exceptions that aren’t relevant here.) And while the administration can naturalize new citizens on its own through USCIS, neither the executive branch nor Congress can denaturalize anyone against their will without a court order.

As a result, the executive order itself amounts to more of a willful blindness of one’s citizenship status than an outright revocation of it. It says that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by state, local, or other governments or authorities purporting to recognize United States citizenship” from anyone covered by its terms.

The shall-issue provision’s impact is strange because the federal government does not typically issue documents “recognizing United States citizenship” to those covered by the order. It does not cover citizenship applicants who complete the USCIS naturalization process, for example, since they have lawful permanent status. Nor would it affect those who complete a N-600 form for a certificate of citizenship since that option is only available to the children of U.S. citizens born overseas.

But the accepting-documents provision carries more weight, though a lot will depend on how far the Trump administration is willing to go to enforce it. Federal agencies check a person’s citizenship for a variety of reasons. The most obvious example is for employment: Every business in the country is required to fill out I-9 forms for new hires. But no one covered by this executive order should be getting a job anywhere for at least 15 or 16 years. Children affected by the order could still be caught up by it in other ways: It could make it difficult or perhaps impossible for them to obtain a U.S. passport, among other government benefits.

The good news is that the Fourteenth Amendment forbids all of this. Some constitutional provisions are written in broad terms and can be interpreted multiple ways. The Fourteenth Amendment is not one of them. The amendment’s drafters made clear that it meant the citizenship language to be as broad as possible to overturn Dred Scott v. Sandford and to forestall ex-Confederate states’ efforts to deny citizenship to Black Americans. And the Supreme Court itself has held since the Wong Kim Ark case in 1898 that it applies to any non-diplomat foreign nationals within American borders.

The bad news is that the Trump administration appears to believe that the courts will simply reinterpret the Fourteenth Amendment in their favor. (I would not be surprised if this is the real reason why it doesn’t apply retroactively, for example.) Here is where describing “the law” and “the Constitution” falls apart. If the text, original meaning, and precedent still matter, Trump should suffer a 9-0 defeat at the Supreme Court when this order reaches them. That day will likely come soon since it is already facing multiple challenges from eighteen Democratic-led states, from the ACLU and other civil-rights groups, and from others.

I do not have a high opinion of the justices these days, nor am I particularly confident in their ability to correctly read the Constitution. These are the same nine justices who gutted the Fourteenth Amendment’s Disqualification Clause last spring to avoid applying it to Trump; this is the same conservative majority that conjured “presidential immunity” out of thin air last summer to shield him from a federal criminal trial. If Trump had issued this executive order after his first inauguration in 2017, I would already be writing its obituary. But it is not 2017 anymore.