What the 14th Amendment actually says (and what Trump thinks it says), and what would happen if Trump signed an executive order to reinterpret it.
Updated Oct 30, 2018, 4:41 PM UTC
While this group of Chicagoans (in 1987) is watching a Mexican Independence Day parade, the child is waving a US flag — a reminder that regardless of heritage, everyone born on US soil is automatically an American citizen. Antonio Perez/Chicago History Museum via Getty Images
President Donald Trump wants to end birthright citizenship — the principle that every child born on US soil is automatically a native-born citizen, regardless of the immigration status of the parents — with a stroke of the pen.
He told Axios reporter Jonathan Swan in a taped interview for Axios’s upcoming HBO series that the US was the only country in the world with birthright citizenship, which is very much not true (see this list of 30 other countries). And he said birthright citizenship is something that “they say” he can change simply with an executive order, which isn’t exactly true.
The executive order would simply tee up a court fight; ultimately, the Supreme Court would have to decide whether to stick to its century-old interpretation of the 14th Amendment — which holds that children of noncitizens are in fact “born in the United States and subject to its laws,” and therefore citizens by right — or to specifically exempt children born to unauthorized immigrants.
The executive order doesn’t appear to have actually been drafted yet. But Trump’s comments on it have immediately received more attention than the things the administration is actually doing (or planning to do) on immigration as the midterm elections approach.
Those actions include sending 5,000 troops to the US-Mexico border in anticipation of a “caravan” of a few thousand people; publishing draft regulations that would allow for indefinite family detention and substantially raise economic requirements for immigrants applying for green cards; and reportedly considering a plan — possibly to be announced in the coming days or week — to use the travel-ban provision of US law to stop many or all asylum-seekers from even entering the United States.
That’s because ending birthright citizenship has always been the restrictionist immigration proposal that’s hardest to disentangle from simple xenophobia: the fear of immigrants changing the character of America and overrunning its (white) population.
The arguments made in favor of ending birthright citizenship are arguments about the text of the Constitution, American history, and the rule of law — a comfortable register for elite conservative thinkers to speak in. But its urgency as an issue relies on fears about irreversible cultural change — that continuing to grant birthright citizenship will result in the loss of something irreducibly American.
That’s exactly the undercurrent that the left associates with restrictionism itself — and makes liberals especially attuned to any attack on birthright citizenship, even as the issue makes conservatives wary.
As recently as a few months ago, the idea of ending birthright citizenship by fiat was a joke. Michael Anton, the former spokesperson for the National Security Council known as one of the foremost intellectual proponents of Trumpism, wrote a column in the Washington Post in July calling on Trump to do this — and got shellacked.
On the left, historians who study the 14th Amendment mocked his history at length on Twitter. On the right, the American Conservative — usually sympathetic to immigration restrictionism — ran an op-ed from a scholar at the Cato Institute, which does not share those views. And even the Federalist, known for the anti-anti-Trump tone of its writing, published a piece with the headline “Ending Birthright Citizenship Will Make Republicans Look Like the Party of Dred Scott.”
But now, the proposal is coming from the president himself. So the urgency has been validated — even if the executive order itself won’t be on the books anytime soon, if at all. And Trump’s endorsement of the strategy may make it much harder for conservatives to laugh off.
Donald Trump says a lot of things, and floats a lot of policies. Figuring out how likely they are to actually happen — and when — depends on context. So here’s the context:
Axios reporters have had several conversations over the past weeks and months with White House staffers, including staff in the White House Counsel’s office, about Trump’s interest in signing an executive order that would bar birthright citizenship to children of unauthorized immigrants.
Axios is about to launch an HBO series (the first episode will air November 4). As part of that series, they taped an interview between correspondent Jonathan Swan and Trump. And as part of that interview, Swan asked Trump about his plans for birthright citizenship.
In other words, the answer to “why is this happening right now, a week before the 2018 midterms?” could very well have everything to do with Axios’s desire to build buzz for its upcoming series.
Trump didn’t give Axios a timetable for when he planned to sign the executive order; he just said it was something he was going to do. (He claimed, “It’s in the process, it’ll happen,” but gave no other details.) Trump lies all the time, including about things he has done or will do — especially on immigration, where the president is particularly reactive.
Most recently, Trump has claimed that he is ending foreign aid to Central American countries after a caravan of several thousand people crossed from Guatemala to Mexico last week; he cannot single-handedly do that, and no further instruction from the White House to the State Department has been forthcoming.
It’s not clear that plans for a birthright citizenship executive order have gone beyond the White House (including the White House counsel’s office). A lot more would have to be done before an executive order were ready for prime time. It would need extensive review from the Department of Justice (specifically the Office of Legal Counsel) to assess its legality, and from the Department of Homeland Security and other departments to work out consequences.
Trump and company haven’t always abided by this process — most notably, the first iteration of the travel ban was famously issued with barely any review or consultation. But the second and third iterations of the travel ban did, and generally, the administration appears to have learned its lesson — even the “zero tolerance policy” that led to widespread family separation at the US-Mexico border earlier this year (which wasn’t exactly well planned) went through formal review and approval before being put into effect.
The Trump administration has an aggressive immigration agenda already. Trump himself doesn’t singlehandedly determine what they focus on or when. And it’s simply not clear that this is a priority. In other words, the president’s remarks to Axios are better described as Trump talking about a thing he wants to do than Trump talking about a thing he’s definitely going to do, much less already doing.
The 14th Amendment to the US Constitution 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.”
The amendment, ratified in 1868, was primarily intended to nullify the Supreme Court’s infamous 1857 ruling in Dred Scott v. Sandford, which ruled that no African American could become a citizen, regardless of their status at birth. Without the guarantee of citizenship, black Americans had lacked clear rights to own property, move freely, or even remain in the United States — “colonization societies” raised money for the mass deportation of former slaves to Africa, a continent their ancestors had left generations before. The 14th Amendment offered them a legally secure position in the United States for the first time.
Congress didn’t initially plan to use a constitutional amendment to fix Dred Scott. According to constitutional scholar Linda Monk, Congress first wrote a bill in 1866 to extend birthright citizenship to everyone “not subject to any foreign power, excluding [Native Americans who are] not taxed.” President Andrew Johnson, who was much more conservative than Congress on race and Reconstruction, vetoed the bill because he worried it would apply to immigrants — Chinese Americans and “gypsies” — as well as black Americans. Congress overrode the veto, and passed the constitutional amendment to boot.
At first, the Supreme Court interpreted the citizenship clause narrowly; in 1873, for example, it clarified that it did not apply to children of “citizens or subjects of foreign States.” But because there weren’t yet any restrictions on immigration, the difference between citizen and noncitizen simply wasn’t as meaningful as it would soon become with the passage of the Chinese Exclusion Acts of the 1880s — which not only excluded Chinese nationals from entering America but stated that they were outright barred from US citizenship.
In 1894, Wong Kim Ark, who was born in San Francisco, came back to the US after a visit to China. But immigration officials wouldn’t let him in. He protested that he was a citizen; the federal government used the case to lay out the position that (in the words of historian Erika Lee) “American-born Chinese could not be considered citizens if their parents were not, and could never become, naturalized citizens.”
The case made its way to the Supreme Court, where the justices ruled 6-2 in favor of Wong, stating that “the right of citizenship . is incident to birth in the country.”
