On Tuesday, President Trump announced his plan to end “birthright citizenship” by executive order. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said, falsely asserting that “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits.” In truth, more than 30 other countries in the Western Hemisphere alone have some form of jus soli, where birth automatically confers citizenship.
Trump’s argument is radical, and his proposal is plainly unconstitutional; the president can’t simply nullify the meaning of a constitutional amendment. Trump’s rhetoric is just that—rhetoric with little bearing on actual policymaking. But he is the president. His words matter. And attacking birthright citizenship as part of a racist hysteria campaign is as close as we will likely get to Trump openly stating his driving belief: that America is a white nation for white people.
Trump rejection of the constitutional grounding for birthright citizenship echoes a much-derided argument from former adviser Michael Anton. “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other,” the president tweeted on Wednesday. “It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ ”
Trump is trying to create an illusion of constitutional dispute and uncertainty around the issue, citing unnamed “legal scholars” to bolster his point. But birthright citizenship is on firm constitutional ground.
The text of the amendment 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.” It was understood at the time to include everyone but American-born children of diplomats and Native Americans living on reservations. There have been the debates over the amendment, where opponents raised the issue of citizenship for the children of foreign-born residents and proponents affirmed their intent to provide citizenship to everyone born on American soil. And there is the 1898 Supreme Court ruling that affirmed this understanding when it upheld the citizenship of an American-born Chinese man whose parents had been legally barred by the 1882 Chinese Exclusion Act from becoming citizens of the United States.
Trump is staking a radical position. Legal thinkers on both sides are pushing back, blasting his proposal as “unconstitutional,” at odds with the plain meaning of the 14th Amendment, and far beyond the scope of presidential power. “Our Constitution could not be clearer that it is Congress, not the president, who is in the driver’s seat when it comes to immigration. And Congress has already spoken,” wrote George Conway and Neal Katyal for the Washington Post, citing a 1952 statute that reaffirmed birthright citizenship.
Even so, constitutional understandings are not static. A Supreme Court stacked with conservative justices—including two Trump nominees—might revisit our traditional understanding of birthright citizenship, opening a door to the president’s proposal. There’s also the politics. Where Trump goes, the Republican Party follows, and by floating the issue, Trump makes it a partisan concern, the first step in building a constituency for challenging the 14th Amendment. Indeed, South Carolina Sen. Lindsey Graham has already promised legislation to end birthright citizenship, calling the constitutional provision a “magnet for illegal immigration in modern times.”
For now, birthright citizenship is secure. Immediate litigation awaits any executive order, and that’s if President Trump ever produces one—recent reports suggest he spends less time on the duties of the office, and more on cable news and social media. And yet, his words have weight. They reveal his intentions. If still empowered after the midterm elections, Trump and his allies will continue their assault on undocumented immigrants and their children. They hope to block citizenship, and recent actions—like an investment in denaturalization procedures—suggest a desire to revoke it altogether.
Donald Trump is often derided as a man of impulse and ego without conviction or belief. This is true on most questions of politics and policy. But on questions of identity, Trump is an ideologue. From his anti-Obama birtherism to his present-day nativism, he has a clear perspective: that race and nationality are the basis for belonging. It’s why he refused to denounce David Duke during the presidential campaign; why he similarly refused to condemn white supremacist protesters in Charlottesville; why he uses social media to denounce black athletes and black politicians; and why he’s ending this election season with naked appeals to white racial resentment. With his broadside against birthright citizenship, he’s as close as he’s ever come to stating that outright.
If the 14th Amendment represents the struggle to build inclusive models of national identity untethered from racial caste or classification, then Trump stands for those who see America in opposite terms: as a white democracy, a master’s democracy, whose promise will always belong to those who dominate.
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