The Trump crusade to end birthright citizenship isn’t a new idea. But it would create a permanent caste of aliens
By Greg Guma
It’s a crystal clear idea: citizenship and equal protection under the law for everyone born or naturalized in the United States. Beyond that, the 14th Amendment to the US Constitution also protects the rights of life, liberty, and property of all citizens.
The language is unequivocal. “All persons born or naturalized in the United States,” it states, “and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
And yet, like so many things these days, this could change.
During his recent campaign for re-election Donald Trump repeated his past pledges about ending and revoking the citizenship status of children born in the United States to non-citizen parents. On Dec. 8, 2024, he told NBC News in a post-election interview that it was an official goal. “We’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it.” He also claimed that he could use his presidential powers — through the use of executive orders — to end birthright citizenship “if we can.”
But can he? On Jan. 23, a federal district court judge said no, temporarily blocking Trump’s presidential order to limit birthright citizenship. Judge John Coughenour was responding to legal challenges from four states. It’s just the first step in what will no doubt be a multi-year, mult-state and federal legal battle. Coughenour blocked the Trump order for just 14 days, ending February 6th. “I’ve been on the bench for over four decades,” said the judge, a Reagan appointee. “I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
The day before that deadline, District Judge Deborah L. Boardman granted another temporary restraining order after a group of 16 pregnant women sued the Trump administration. “No court in the country has ever endorsed the president’s interpretation” of the amendment, she said. “This court will not be the first.” The lawsuit is one of several from pregnant women, civil rights groups and state officials challenging the order.
Yet it’s not unprecedented. In fact, the idea has been pushed for decades by Republicans, many of them publicly saying that they want to abolish the citizenship guarantee of this 140-year-old Amendment.
The official reasons? It’s a smorgasbord, to use imported slang. Some say that too many undocumented immigrants come to the US just to insure citizenship for their children. This fuels ideas like getting states to deny public education and other benefits to children of undocumented parents. The immigrant “threat” is often a pretext for attacks on basic rights and constitutional principles.
Hatred and cruelty directed at immigrants is a persistent theme in US politics. In 1996, for example, when then-California Gov. Pete Wilson announced that undocumented pregnant women should be denied prenatal care, his underlying message was clear and brutal: If you’re “illegal,” get out of our country!
“Citizenship in this country should not be bestowed on people who are the children of folks who come into this country illegally,” argued Tom Tancredo, a Colorado Republican Congressman who led the charge long before the rise of Trump. As far back as 2006 at least 83 GOP co-sponsors pushed a bill that would have restricted automatic citizenship at birth to children of U.S. citizens and legal residents.
More than 150 years ago, at the end of a two-year war, US and Mexican leaders signed the Treaty of Guadalupe Hidalgo. Many Latinos still feel that the treaty, accepted under pressure by a corrupt dictator, was an act of theft violating international law. Mexico surrendered half its territory — currently the Southwestern United States — and most of the Mexicans who stayed in the ceded region ultimately lost their land.
In a sense, that war never ended. Throughout the remainder of the 19th century, US officials, working closely with white settlers and elites, used often-violent means to subdue Mexicans in the region. Once the region was “pacified,” border enforcement became a tool to regulate the flow of labor into the US. With the passage of the Immigration Act of 1924, the Border Patrol emerged as gatekeeper of a “revolving door,” sometimes processing immigrant labor, sometimes cracking down. The Bracero Program, which brought in Mexican agricultural laborers, was followed (and overlapped by) Operation Wetback, an INS-run military offensive against immigrant workers.
Trump’s order not only directs federal agencies to stop issuing citizenship documents to U.S.-born children of undocumented mothers; it applies to mothers in the country on temporary visas, if the father isn’t a citizen or permanent resident.
According to a lawsuit filed by 18 states, there are about 150,000 children born each year to two parents who are non-citizens and lack legal status. California Attorney General Rob Bonta estimates the order would affect more than 20,000 newborns each year — 5% of the babies born in that state annually.
In the past, the Supreme Court has described citizenship as the most basic of all rights, a “priceless possession.” The opening clause of the 14th Amendment was designed principally to grant both national and state citizenship to the newly free Blacks. Under its terms, citizenship is acquired by either birth or naturalization; thus, any person born in the US is a citizen — regardless of parentage.
But the current Supreme Court isn’t easy to predict. The justices would likely rule against the executive order, scholars claim — that is, if they took up the issue. But they could also decide not to rule or defer to lower court rulings.
A primary goal of the 14th Amendment was to overrule the notorious Dred Scott decision, in which the Supreme Court held that neither Blacks who were “imported into this country and sold as slaves nor their descendants” could become citizens. During debate in 1866, Congress also considered the likelihood that it would apply to children of immigrants. Until the 14th Amendment, there was no constitutional definition of US citizenship. Ironically, the Republican Party pushed this and other Reconstruction measures through Congress after the Civil War.
If children born in the US to illegal immigrants are citizens, some also charge that it’s too easy for their parents to obtain visas and citizenship later. This idea first surfaced in the 1996 GOP platform. Recommended by a panel created by then House Speaker Newt Gingrich, a proposal called for “a constitutional amendment or constitutionally valid legislation declaring that children born in the United States of parents illegally present are not automatically citizens.” Scholars warned then that another constitutionsl amendment would almost certainly be needed to make such a profound change.
A month before she died, Barbara Jordan, former chairwoman of the US Commission on Immigration Reform, eloquently denounced the idea. “To deny birthright citizenship,” she told Congress, “is to derail the engine of American liberty.” Walter Dellinger, Acting Solicitor General at that time, added the following prediction: It would create “a permanent caste of aliens, generation after generation born in America but never to be among its citizens.”
Be that as it may, another bad idea is back.
