President Donald Trump is now promising an executive order to end birthright citizenship in the United States, his latest anti-immigrant manoeuvre to get his base excited about next week's midterm election. "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," Trump told Axios in an interview set to be aired Sunday. "It's ridiculous. It's ridiculous. And it has to end."
That is a lie. More than 30 countries provide citizenship to those born on national soil, including Canada and Mexico. In the US, birthright citizenship is possible because of the 14th Amendment of the United States Constitution: "All persons born or naturalised in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
AdvertisementADVERTISEMENT
This constitutional amendment was created to nullify the US Supreme Court’s 1857 decision on Dred Scott v. Sandford, which stated that slave descendants, i.e. Black people, were not American citizens and could never become such. And then at the end of the century, the Supreme Court set up its most important precedent of the citizenship clause with its decision on United States v. Wong Kim Ark. In 1894, Wong Kim Ark, born in San Francisco to Chinese immigrants, was denied entry to the US after returning from a trip abroad. He said he was born in the US and therefore a citizen, while immigration officials argued that he wasn't because of the Chinese Exclusion Act. That policy prohibited the immigration of Chinese nationals and barred them from obtaining citizenship, so the federal government argued that because his parents couldn't become naturalised citizens, birthright citizenship didn't apply to Wong. The case eventually reached the Supreme Court, which ruled 6-2 in Wong's favour. The decision stated that “the right of citizenship ... is incident to birth in the country.”
According to Garrett Epps, professor of constitutional law at the University of Baltimore, the goal of the 14th Amendment was to unequivocally end the racialised — "by blood" — definition of citizenship in the United States. "A democratic country belongs to its people, not the other way around. The Framers of the Fourteenth Amendment knew this well. They’d had decades of experience with racist state laws denying citizenship to slaves, free Black Americans, and immigrants," he wrote for The Atlantic. "The citizenship clause placed American citizenship —national, equal, unitary, irrevocable — at the center of the democratic polity that they hoped to build from the ashes of the house divided."
AdvertisementADVERTISEMENT
But hardline immigration advocates argues that the amendment was never meant to apply to the children of non-citizens and unauthorised immigrants born on US soil. During the 2016 presidential election, Trump pushed for the end of birthright citizenship as part of his campaign. At the time, he argued that the move would discourage unauthorised immigrants from coming into the United States. However, experts say that jobs, not the potential of birthright citizenship, are the main factor why people migrate to the US without documents. Instead, revoking birthright citizenship would balloon the nation's undocumented population, creating a new class of disenfranchised, stateless people that would face deep economic and integration challenges.
In the interview with Axios, he argued that while people think you would need a constitutional amendment or Congress to pass legislation undoing birthright citizenship, his legal counsel told him he can repeal it via executive order.
Legal scholars argue Trump doesn't have the power to unilaterally overturn any element of the 14th Amendment. In fact, he would need a ton of support to achieve so: Either two-thirds of the House and Senate would have to vote in favour of changing the amendment's language or two-thirds of the state legislatures would have to call for a constitutional convention. This means his administration is setting itself up for a legal battle if he tries to revoke birthright citizenship via an executive order, just like when he first tried to implement his travel ban. "Birthright has been affirmed, again and again, ensuring that no matter how racist the regime, the Constitution grants citizenship to all people born in the United States," Martha Jones, professor of history at Johns Hopkins University and author of Birthright Citizens: A History of Race and Rights in Antebellum America, wrote in the Washington Post. "The 14th Amendment transformed our governing text into a document that protects those born in the United States from arbitrary and politically motivated bars to citizenship, including race, religion and party affiliation."
The promise to end birthright citizenship is just part of Trump's closing argument to voters prior to the midterm election. As prescribed by white nationalist and former White House adviser Steve Bannon, the president is making the final stretch all about adding fuel to the anti-immigrant sentiment of his base. In the last weeks, Trump has stoked fear and pushed conspiracy theories about the Central American refugees in a migrant caravan that's still about 1,000 miles away — i.e. weeks away — from the US southern border and shrinking in size as people seek refuge in places like Guatemala and Mexico. He is allegedly considering an executive order to block migrants from seeking asylum, which would potentially be in violation of United States and international law. The administration sent 5,200 troops to the US-Mexico border, increasing the number of active troops in the region to about 7,300 and outnumbering the caravan, where two-thirds of the migrants are women and children.
Trump's anti-immigrant rhetoric has had a real-life effect outside of the confines of the election: Both the man allegedly behind the homemade bombs sent to the president’s political opponents, and the man accused of massacring of 11 people at a synagogue, pushed conspiracy theories about migrants and were openly anti-Semitic.