Donald Trump’s Executive Order Scrapping Birthright Citizenship Will Affect the Native Born Too: A Roundup

It’s unconstitutional but conservative legal scholars are showing signs of slippage

(Evgeniya Lystsova, Shutterstock, The UnPopulist illustration)

Donald Trump wasted no time frontally challenging the Constitution: On Jan. 20, his first day in office, the president issued an executive order declaring that the U.S.-born children of undocumented immigrants would no longer be American citizens, despite the 14th Amendment’s plain language establishing birthright citizenship. Trump’s order is the culmination of a promise he made years ago to end this constitutional guarantee on Day One of his second term. His attempt to do away with birthright citizenship, a longstanding goal of the nativist right, by executive means without amending the Constitution will be an uphill task. Indeed, four federal judges in different parts of the country have already issued injunctions to stop the order from going into effect as the case wends its way through courts. Washington’s Judge John C. Coughenour was the first to halt Trump’s order, calling it “blatantly unconstitutional.” He was followed by Judge Deborah L. Boardman of Maryland, then Judge Joseph N. Laplante of New Hampshire, and just yesterday Judge Leo T. Sorokin of Massachusetts. Coughenour and Laplante were appointed by Republican presidents.

This is heartening, but the administration no doubt understands that ultimately the issue is likely to be decided by the Supreme Court where it is hoping that the six conservative justices will ignore its own past precedents and rule in Trump’s favor. But the justices should also understand just what the stakes are. Trump’s order is not only breathtaking in its speed but also scope—and its ripple effects will be felt by Americans far beyond the immigration population being targeted.

Breathtaking Scope

That Trump’s order would bar the American-born babies of undocumented immigrants from automatic citizenship was expected, but it actually goes much further in that it seeks also to deny citizenship to children born on U.S. soil to temporary residents who are here lawfully—a classification that includes not just travel visa holders, but also workers, students, DACA recipients, and others. This is a dramatic escalation of Trump’s assault on the 14th Amendment as it would make birthright citizenship conditional not merely on being in the country legally but on being a green card holder. Although the order applies to children born at least a month after its issuance and does not apply retroactively (more below on why this forward-looking element is a sham), it’s striking that Trump’s most recent presidential rival, Kamala Harris, would’ve been denied citizenship based on these parameters despite being born in California to parents studying in the country lawfully at the time of her birth.

Trump’s order notes that the 14th Amendment “has never been interpreted to extend citizenship universally to everyone born within the United States.” That claim is tantamount to making the exceptions the rule. The Supreme Court has affirmed—and then repeatedly reaffirmed—that the only legitimate exceptions to automatic citizenship are the children of parents who work for another country (diplomats) or attack us on behalf of another country (invaders). Everyone else born here gets automatic citizenship.

Trump’s order, based on the arguments of disgraced insurrectionist John Eastman and likeminded constitutional revisionists, contends that the 14th Amendment’s requirement that a person be “subject to the jurisdiction” of the United States in order to qualify for birthright citizenship should also rule out the children of both undocumented immigrants and lawful but temporary residents. Trump’s order would effectively make green cards a minimum requirement for the 14th Amendment’s birthright citizenship provision.

Reactions to Trump’s order have been overwhelmingly critical on constitutional, moral, and practical grounds. But the sampling of analyses presented below argue that on the outside chance that Trump’s order survives constitutional muster and becomes law, it will affect literally everyone in the United States.

Unconstitutional, Immoral, and Impractical

Birthright citizenship is not only a core tenet of U.S. law but one of its most significant promises. The American Civil Liberties Union’s complaint challenging the order puts it well:

Birthright citizenship embodies America’s most fundamental promise: that all children born on our soil begin life as full and equal members of our national community, regardless of their parents’ origins, status, or circumstances. ... The framers of the 14th Amendment specifically enshrined this principle in our Constitution’s text to ensure that no one—not even the president—could deny children born in America their rightful place as citizens. They did so with full knowledge and intent that this would protect the children of immigrants, including those facing discrimination and exclusion.

Other legal challenges brought by states and cities and immigrant advocacy groups also argued that Trump’s executive order is flatly unconstitutional. In a deep dive on birthright citizenship, Georgetown law professor

Steve Vladeck

explains:

For President Trump to be able to take any real bite out of birthright citizenship, he’d have to persuade the Supreme Court to read a statute to mean something other than what it’s been understood to mean for 158 years; to ignore what the Court’s predecessors said in Wong Kim Ark about the breadth of birthright citizenship; to overrule the two more-recent cases specifically recognizing children of undocumented immigrants as citizens; to collapse the distinction in Wong Kim Ark (and historical practice) between “hostile occupation” and “invasion”; and, even then, to persuade five justices that undocumented immigrants, regardless of their country of nationality, are “invading” the United States for constitutional purposes—and are somehow not “subject to the jurisdiction thereof” while they are here (which would pose its own problems for trying to enforce our immigration laws against them).

The Brennan Center’s Thomas Wolf pointed out the jarring reality that, on Jan. 20, Trump went from affirming to uphold the Constitution to sensationally defying it mere moments after: “[I]t’s worth pausing to stress the brazenness of what he has done. Every new president swears to uphold the Constitution. Only minutes after taking that oath, President Trump violated it—flagrantly.”

Are Trump-Aligned Jurists Slipping?

Wolf further asks whether the constitutionality of birthright citizenship will be the salient consideration for this Supreme Court, since the justices currently on the bench have shown a willingness to back Trump even when his position seems to clash with the Constitution: “It’s reasonable to wonder whether the current Supreme Court will defy Trump on an issue about which he has campaigned so aggressively. It’s undoubtedly true that the justices have bent American jurisprudence into novel shapes to avoid direct conflict with Trump.” In The Atlantic, Adam Serwer argues that Trump’s order will give us our first good look at the extent to which the judiciary is prepared to accede to Trump’s ideological demands:

Trump’s executive order on birthright citizenship is an early test of the federal judiciary, and of the extent to which Republican-appointed judges and justices are willing to amend the Constitution from the bench just to give Trump what he wants. They have done so at least twice before, the first time by writing the 14th Amendment’s ban on insurrectionists running for office out of the Constitution, and the second time by seeking to protect Trump from prosecution by inventing an imperial presidential immunity out of whole cloth. But accepting Trump’s attempt to abolish birthright citizenship would have more direct consequences for millions of people, by nullifying the principle that almost anyone born here is American.

The trajectory of far-right Federal Judge James Ho, a former clerk for Justice Clarence Thomas, on this question may be illustrative of how, among Trump-aligned intellectuals and jurists, ideological commitments and considerations have superseded sound constitutional interpretation. In 2006, Ho rightly concluded that trying to eliminate birthright citizenship by statute would be wrong:

Birthright citizenship is guaranteed by the 14th Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers. ... [T]ext and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.

But, more recently, Ho has been sympathetic to characterizing immigration at the U.S. southern border as an “invasion.” In such a context, he notes, birthright citizenship wouldn’t apply. Construing immigrants as an invading force thus theoretically paves the way for Ho to endorse Trump’s attack on birthright citizenship from the bench, since, as Ho notes, “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”

Of course, the idea that immigrants at our southern border can be classified as military invaders is utterly absurd and only serves as a pretext to enact Trump’s draconian policies toward them. Writing on this site, law professor

Paul Gowder

outlines what the Trump camp’s invocation of “invasion” language gets so wrong:

There’s a legal meaning of “invasion” that requires organized, armed hostility to the country being invaded. A federal appeals court, explaining why states could not force the federal government to control immigration under the “Invasion Clause” of the Constitution, pointed out that “[i]n order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government.” This understanding of “invasion” goes back at least to James Madison. Undocumented immigrants who come unarmed of their own initiative, rather than as part of an army, are not invaders. Trump can’t take his own “invasion” metaphor literally in order to bypass constitutional constraints.

Even if the federal courts would be leery about ruling on who is and who is not an invader, the plain reality is that immigrants, documented or otherwise, are the opposite of invaders: they seek the protection of the U.S. and the benefits of living under its government, and rely on the U.S. enduring in order to achieve those outcomes. The last thing they want to do is oppose or attack the United States. Often, they have left the countries they came from because they prefer the U.S. system, including its laws, to the system of the country in which they were born.

George Mason University’s

Ilya Somin

, a contributor at The UnPopulist, agrees with Gowder but worries that courts may still decide that the definition of invasion is a “political question” that judges cannot settle.

But it's not just Trump’s understanding of “invasion” that is historically untenable—his understanding of the 14th Amendment is, too. “One cannot overstate the gravity of Trump’s proposed action, nor the historical ignorance on which it stands,” writes historian David W. Blight. He puts the origins of the order in historical context to show how diametrically opposed to it Trump’s order really is:

[B]irthright citizenship is rooted in the blood of more than 700,000 Americans who died in the Civil War, a catastrophe that made possible what most historians now call the “second founding” of America. The rebirth harkened in the 14th Amendment is the core of this phrase’s meaning. The Trump administration’s desire to obliterate birthright citizenship is part of a larger quest to undo most of this egalitarian tradition, to shift American history into a kind of permanent reverse gear back to an age of secure constitutional white supremacy. ...

The original Republicans who crafted birthright citizenship into the amendment were doing nothing less than harvesting the greatest results of the Civil War, making good on the promise of freedom for millions of any creed, color, or national origin at the time and for all time to come.

The Order’s Far-Reaching Impact

Beyond the constitutionality or historical fidelity of Trump’s order, there’s the question of its impact. Margaret Stock, a conservative immigration lawyer told The New York Times that the immediate impact of the order would be to render many non-citizen babies born here as undocumented.

Worse, notes Sakshi Venkatraman at NBC News, given that certain countries don’t automatically give citizenship to children of citizens not born on the home soil, some kids born here might be temporarily stateless. A lawsuit filed on behalf of an expectant mother due to give birth in March when Trump’s order is scheduled to take effect elaborates:

[D]epriving someone of their citizenship amounts to “the total destruction of the individual’s status in organized society” and “is a form of punishment more primitive than torture” Trop v. Dulles (1958). Those victimized in this way by the EO would be shorn of their national identity, stigmatized in the eyes of those who should be their fellow citizens, and forced to live with the shame, uncertainty, and fear that comes with potential banishment from their native country.

Then there is the possibility that despite Trump’s executive order explicitly targeting babies born a month after the order’s issuance, the implementation of the order would never be confined to just those children. As constitutional law expert Josh Blackman notes: “if this order is successful, there is nothing that would prevent this policy from being enforced retroactively. Trump would not have to denaturalize people. It would be sufficient to deny them documentation of citizenship.”

Trump’s First Volley Against Legal Immigrants

David J. Bier

, the Cato Institute’s director of immigration studies and a contributor to The UnPopulist, does not hold back in a viral thread on X:

Trump’s birthright citizenship executive order ... jeopardizes the citizenship of millions of people in the United States. It purports to limit the damage by applying it only to future children but if they can get away with this blatantly unconstitutional action, they can strip anyone of their citizenship. The 14th amendment would be dead. This order is an attack on American tradition, the rule of law, the Constitution, and indeed Americans themselves. Given how blatantly unconstitutional and how dangerous it is to the rights and freedoms of Americans, it is obviously impeachable, if implemented. This order proves that nativism is not even about immigrants. It’s about a population purge. We are talking about deporting children who are born here, who literally have never been in any other country. That is horrific. Yes, bad for GDP too. But monstrous.

At Reason, Fiona Harrigan notes that:

Some visa holders maintain a “temporary” presence in the U.S. for decades. ... Many of these individuals, and others who have gone through every step to maintain legal status in the U.S. but cannot get a green card, have bought homes, become involved in their communities, and intend to build lives in the United States. They do so in spite of the uncertainty that green card backlogs introduce. Trump’s executive order would add to that uncertainty.

That’s an understatement. But the predictable implications of Trump’s order reveal how poorly thought out it is.

It gets worse, though. Somin explains how the order’s ripple effects might be felt by even U.S.-born children of American parents, the parents themselves, and even their ancestors:

In order to secure citizenship for your child, it would no longer be enough to provide documentation of parentage or place of birth. You would also presumably need to show the parents had the appropriate legal status, and their parents before them, potentially all the way back to the first member of the family who entered the U.S., perhaps decades or centuries ago. After all, if there is even one break in the legal status of the family tree, it could potentially render succeeding generations ineligible for birthright citizenship! At the very least, this is likely to be a serious burden for poorer and lesser-educated parents, who may not have easy access to documentation going back decades.

Trump’s executive order seeking to conceptually reengineer American citizenship so that it better aligns with his nativist vision is unconstitutional, deeply immoral, and against U.S. economic interests. That he wants to deny citizenship to the children of lawful but temporary residents is even further proof that Trump’s agenda isn’t to make our immigration system more orderly but plain and simple hostility to immigrants themselves, undocumented and legal alike. It is clear that he will go to any lengths, even sacrificing the rights of Americans, to accomplish that appalling goal.

This order sets the tone for what his second time in office will be about: openly defying the Constitution if it stands in the way of his designs.

Note: An earlier version of this article claimed that Judge Deborah L. Boardman was appointed by a Republican president. But that was Judge Joseph N. Laplante, who was appointed by George W. Bush. The error has been corrected.

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