Birthright Citizenship Is Absolutely On the Table

Birthright citizenship has been back in the news after Donald Trump claimed during a recent Meet the Press interview that the United States is the only country with birthright citizenship—which is patently false—and that the very concept is “ridiculous.”

“If somebody sets a foot—just a foot, one foot, you don’t need two—on our land, congratulations, you are now a citizen of the United States of America,” Trump said. “Yes, we’re going to end that because it’s ridiculous.”

I’ve seen an alarming number of people, including law professors and pundits, downplaying Trump’s efforts to end birthright citizenship, claiming the 14th Amendment says what it says, and the only way to change it is through another constitutional amendment. That is a mistake considering it’s the Supreme Court that interprets the Constitution, and we can’t trust the six conservative jamokes on the Court to do anything other than what their Federalist Society overlords tell them to.

But first, let’s get into what birthright citizenship even is.

Birthright citizenship is a right guaranteed by the Citizenship Clause of the 14th Amendment. The 14th Amendment states “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.” Basically, the Citizenship Clause extends citizenship to anyone born on American soil.

It’s based on the concept of “jus soli,” which means “of the soil.” This type of citizenship isn’t the same as other forms of citizenship such as naturalization, which is granted to immigrants who are lawful permanent residents, or “jus sanguinis,” which means “of the blood.”

Birthright citizenship is not a new concept. The drafters of the 14th Amendment intended for the Citizenship Clause to supersede the Supreme Court’s disastrous 1857 opinion in Dred Scott v. Sanford, in which the Court held that Black people could never be American citizens because of their race. The 14th Amendment corrected that embarrassing analysis and extended citizenship to all people born on American soil, irrespective of race.

And, in a case called United States v. Wong Kim Ark, the Supreme Court affirmed in 1898 that the 14th Amendment grants citizenship to anyone born on U.S. soil. In that case, Ark was denied reentry into the United States under the Chinese Exclusion Acts, which restricted immigration from China and prohibited Chinese immigrants from becoming naturalized citizens. The U.S. government argued against reentry for Ark, who was born in San Francisco to Chinese citizens living in the U.S. Therefore, his parents were considered “subject to the jurisdiction” of the emperor of China. And on that basis, the U.S. argued, so was Ark.

The Supreme Court resoundingly rejected this interpretation and in doing so, clarified the meaning of “subject to the jurisdiction of.” The Court held that setting aside Native Americans and diplomats who enjoy sovereign immunity in the U.S., the 14th Amendment extends citizenship to everyone born here. Full stop.

That should be the end of the discussion, but rank anti-immigrant sentiment and the rising panic among white nationalists and people who fear that white people are being replaced by brown and Black immigrants mean the attacks on birthright citizenship are growing louder.

The crusade against birthright citizenship isn’t new. In 1993, for example, then-Senator Harry Reid introduced legislation that would have ended birthright citizenship before he came to his senses and apologized—repeatedly—for having lost his head on the matter.

Despite having some support, the movement to end birthright citizenship never gathered much steam in the 1990s.

And then came Trump.

Along with Trump came his cronies; people like Trump attorneys John Eastman and Kenneth Chesebro, two architects behind the “Stop the Steal” movement who have also signed on to Trump’s tortured view of birthright citizenship. Chesebro once referred to birthright citizenship as “a vestige of feudalism” in a 2016 amicus brief for an Obama-era case called Tuaua v. United States, Talking Points Memo reported. In Tuaua, a group of American Samoans sued the United States to force it to recognize American Samoans’ birthright citizenship. (They lost, ultimately—the Supreme Court declined to hear the case, leaving in place the lower court order that unincorporated territories are not within the United States for purposes of the Citizenship Clause, and that therefore people born in American Samoa are not entitled to birthright citizenship.)

Under normal circumstances—if we didn’t have the most conservative court in modern history—any effort to end birthright citizenship would be dead on arrival. Given the recent originalist trend towards looking at whether certain rights are “deeply rooted in this Nation’s history and tradition” (Justice Samuel Alito’s justification for discarding abortion rights in Dobbs v. Jackson Women’s Health Organization), birthright citizenship should be safe. Any originalist interpretation of the 14th Amendment would require that the right to birthright citizenship remain steadfast.

But conservatives have been advancing an argument that would turn the 14th Amendment on its head while sneakily trying to maintain that originalist interpretation.

Take Fifth Circuit Court of Appeals Judge James Ho, for example. Ho mounted an originalist defense of birthright citizenship in a 2006 paper:

“There is increasing interest in repealing birthright citizenship for the children of aliens—especially undocumented persons. According to one recent poll, 49 percent of Americans believe that a child of an illegal alien should not be entitled to U.S. citizenship (41 percent disagree). Legal scholars including Judge Richard Posner contend that birthright citizenship for the children of aliens may be repealed by statute. Members of the current Congress have introduced legislation and held hearings, following bipartisan efforts during the 1990s led by now-Senate Minority Leader Harry Reid and others.

“These proposals raise serious constitutional questions, however. Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

Cut to 2024, and Ho, now likely to be on Trump’s shortlist of Supreme Court picks should Alito or Thomas retire, has changed his tune. He claims he still believes in that originalist interpretation, with one exception: The drafters of the 14th Amendment did not intend for it to apply during an invasion or a time of war. In an interview with law professor Josh Blackman for Reason, Ho said:

“Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.”

And that’s the ball game, isn’t it? Even though late 19th-century efforts to exclude Chinese immigrants from the U.S. were grounded in the same racism and nativism that ground current efforts to exclude and remove Latin American immigrants, there’s a difference in scale. In the 1880s, the conservatives of the day were complaining about an immigrant population that comprised less than 1 percent of the total population. The current Latin American population is about 19 percent of the U.S. population.

Can’t you see Alito firing up his typewriter to muse that the 14th Amendment was intended to address the citizenship of formerly enslaved Black people, and not the citizenship of the children of undocumented immigrants who are invading our shores?

I sure can.

And even if, ultimately, the Supreme Court rules against Trump, chaos would ensue after Trump issues an executive order ending birthright citizenship. It would terrorize immigrants—both documented and undocumented. And that’s the point.

When it comes to the Trump administration, cruelty and chaos is always the point.

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