Trump Pretends He Banned Birthright Citizenship. You Gonna Go Along With That?
He can't actually do that, as if little details matter.
Along with an entire garbage bargeload of executive orders issued by Donald Trump immediately after he retook office yesterday, Trump decided that the 14th Amendment’s plain text doesn’t mean what it actually says about citizenship.
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 executive order asserts, contrary to Supreme Court decisions going back to the late 19th century, that the 14th Amendment doesn’t really mean what it says about birthright citizenship, because people in the US who aren’t citizens or legal residents are “not subject to the jurisdiction” of the US, which is, constitutionally speaking, a load of hooey. (The original meaning of the phrase meant Native Americans weren’t citizens, an exception that Congress fixed in 1924.)
The 14th Amendment was passed to fix the idiotic Dred Scott decision which held that enslaved people were not citizens, and what’s more, neither were their children, and they never could be. Advocates for doing away with birthright citizenship insist that the framers of the 14th Amendment didn’t really mean it to extend any further than that, although that also goes against more than a century of Supreme Court interpretations of the amendment’s meaning.
Basically, what Trump is trying here is an old trick from his first term, where he wants to settle a matter of constitutional interpretation with an executive order. Or just plain ignore it, which he is not allowed to do unless the current crop of Supremes lets him. The lawsuits are already being filed to stop it, and eventually one or more will get to Trump’s pet Court, where he hopes at least five of the justices will remember where their loyalty lies: With the lying liar, of course.
The citizenship status of a child of noncitizens born in the US was already settled way back in 1898, in the case United States v. Wong Kim Ark. The plaintiff, Wong Kim Ark, was born to Chinese nationals in San Francisco in 1873. But when he went to China to visit relatives after he became an adult, he was refused re-entry because the US was in the midst of one of its great xenophobic panics, and didn’t he notice he was Chinese, not American? Like the Trump EO, the US argued that “subject to the jurisdiction thereof” doesn’t apply to children of various kinds of foreigns because “all persons born in the United States” has a magical exception not written down on paper, especially for people not here with legal status.
We’ll hand the summary over to the Brennan Center, which has a helpful explainer on why Trump’s EO is full of shit.
Citing principles that stretched back through 17th-century English law and the clear language of the 14th Amendment, the Supreme Court recognized that birthright citizenship is “ancient and fundamental.” The Court has continued to endorse this understanding since, including in 1982’s Plyler v. Doe, which affirmed that undocumented immigrants and their children are entitled to all the 14th Amendment’s protections.
In essence, those earlier decisions said that if people have to follow US law like anyone else here, then they are “subject to the jurisdiction” of the USA and have to pay taxes and stuff, and also get due process rights, even. All persons means all persons. The only really significant exception is that if two Rooshian diplomats have a baby here, that is not a US citizen because embassies are technically Rooshian territory, for the purpose of law. That’s also why cars with diplomatic plates are a menace to everyone in New York when the UN is in session.
But hey, nobody’s actually brought a birthright citizenship case before this Court, which may well decide that some 16th-century ruling by a Witchfinder General overrules Wong Kim Ark, so tough luck.
Trump’s EO goes beyond pretending that undocumented parents aren’t “subject to the jurisdiction” of the US, and would also exclude citizenship for children born to a mother whose
presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
This is pretty huge, since it would also exclude children born to people who have been here for years under Temporary Protected Status, which includes many of the legal immigrants from Haiti Trump hates because even if they don’t eat pets, he still thinks TPS is “illegal.” Right now, some 610,000 foreigns from 16 countries hold TPS. Trump tried to eliminate existing TPS designations in his first term, but was stopped in the courts. So of course he wants to try to reverse it again.
So you could see an absurd situation where a family who escaped Ukraine had children in 2022 and 2024 who would be citizens, but the kids’ younger sister who’ll be born in March of this year will now not be. TPS does not in itself include a path to permanent residency.
Awfully considerate of Stephen Miller to let children of people with green cards be citizens. Presumably the logic there is that once you have legal permanent residence you’re eligible to eventually be naturalized if you keep your nose clean and no other green card holder anywhere in the US says anything that pisses Trump off.
One small comfort: This unconstitutional order doesn’t attempt to be retroactive. It will only apply (unconstitutionally) to children born 30 days after yesterday. Even the people who wrote the EO for Trump seem to have recognized that this is already contentious enough without also trying to strip citizenship from people who already have it. Does Trump know that? He probably doesn’t.
How insane is this order? For instance, under its remake of citizenship, Kamala Harris, whose parents were graduate students in the US when she was born, might not be a citizen either. Her birth certificate only notes they were from Jamaica and India, but doesn’t specify what kind of visa they had, or whether they had permanent residence at the time.
Thank Crom, Trump won’t try to deport her, at least not yet. But if the Supremes do decide it’s somehow constitutional — which seems extremely unlikely, but it’s this Court — then sure, expect the next step to be a follow-up order stripping millions of Americans of their citizenship. And as we saw the first time around, with Miller running things, the government will be looking for every conceivable excuse to rescind green cards and citizenship from other immigrants.
As we say, the ACLU is already on this, and along with immigrant-rights groups has filed a federal lawsuit to block the order from taking effect. Among the plaintiffs is an Indonesian couple who came to the US in 2023 and asked for aylum; their application is still under review.
The mom-to-be is in her third trimester. Under this executive order, their baby would be considered an undocumented noncitizen and could be denied basic health care and nutrition, putting the newborn at grave risk at such a vulnerable stage of life.
Such children would also be unable to obtain required identification and, as they grow up, be denied the right to vote, serve on juries, hold certain jobs, and otherwise be a full member of American society, even though they were born in the United States and have never lived anywhere else.
Unfortunately, the party currently in power would read that, sneer, and say “Good.”
[WaPo (gift link) / ACLU / White House / Brennan Center / Palm Beach Post]
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Where are the "trump did this" stickers I can put onto grocery shelves and gas pumps in six months?
So...after I added my Anti-Trump and my RESIST button to my Hate Never Made Anything Great button (all available on Etsy!) to my leather jacket last night...
Went to the fitness room and got my workout on.
Finished up and went to the shelf where my jacket was.
Young woman smiled at me and said "I love all your buttons...I'm with you."
HA! Suck it, Trumpers who glare at me--I lap up your hatred. HA!