Trump is now saying he can do this via executive order.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told Axios. “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”
“We’re the only country in the world where a person comes in, has a baby, and that baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump added. “It’s ridiculous. And it has to end.” Trump concluded: “It’s in the process. It’ll happen.”
No, it won’t happen.
The idea of ending birthright citizenship — including by executive order — has long been a dream of restrictionists. It was recently floated by former Trump adviser Michael Anton, the creator of the “Flight 93 Election” imagery, which posited that immigration poses an existential demographic emergency to the United States and that bipartisan elites who favor it are carrying out a form of assisted civilizational suicide.
Ending birthright citizenship, in this narrative, will slow this march toward the cliff. To oversimplify, the idea that this can be undone by executive order turns on a rather creative interpretation of an 1890s Supreme Court decision. That decision interpreted the 14th Amendment — which holds that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” — to apply to, well, all persons born in the U.S. The restrictionists claim this does not apply to the children of undocumented immigrants, because they aren’t “subject to the jurisdiction” of the United States.
The argument is absurd — undocumented immigrants are indeed subject to U.S. jurisdiction, and denying their children citizenship privileges would be unconstitutional. But Trump could theoretically direct federal agencies via executive order to stop treating the children of non-citizens as citizens. This would be challenged, and the Supreme Court would then “clarify” whether birthright citizenship applies to the children of the undocumented. (With this court, you never know.)
Trump is a racial nationalist
The important point here is that Trump, by moving to reverse what was originally intended as a bedrock guarantee of citizenship to those born here regardless of their race or the heritage of their parents, is again confirming fealty to a racialized vision of American citizenship, as Adam Serwer argues. When Trump recently said, “I’m a nationalist,” he prefaced this by suggesting this was a taboo thing to say, which is a way of dog-whistling, “I’m a racial nationalist, and I’m not afraid to say so,” while actually speaking aloud only the uncontroversial half of that notion.
By reviving ending birthright citizenship, Trump has again confirmed — as he did with his “s—hole countries” remark — that his animating impulse is to stall or roll back the country’s evolving racial and ethnic mix. As Garrett Epps has noted, stripping away citizenship is also the stuff of autocrats and tyrants. But it’s worth recalling that this position is hardly confined to Trump. When he floated it during the campaign, multiple other GOP contenders joined him.
Trump is offering nothing except racial panic
What’s particularly galling is that this comes even as Trump’s race-baiting, xenophobia and incitement of hate are doing serious damage to the country. Trump has fearmongered endlessly about desperate and destitute migrants hundreds of miles away, while claiming “globalists” are orchestrating their exodus, a white nationalist trope that imagines a conspiracy to infest and weaken the “real” American people. Nearly a dozen real Americans were just gunned down in a synagogue, allegedly by a man who spewed hate-filled diatribes about Jews bringing “invaders in that kill our people,” by which he meant refugees.
Trump has responded to this by escalating matters further, dispatching more than 5,000 troops to the border, thus employing our military to do a set piece in his agitprop campaign to create the false impression of a national emergency. Republicans have joined in this effort, too, with many running ads painting immigrants as criminal invaders, and some even connecting the caravan to George Soros. Making all this even worse, as Brian Beutler points out, back when Republicans were trying to stop Trump’s rise, they warned publicly that his dehumanization of immigrants and minorities could have horrific real-world consequences. Now that this has actually happened, Republicans have not backed off in amplifying Trump’s demagoguery.
Now, on top of that, Trump is moving to deny citizenship to the children of undocumented immigrants, an obvious bid to further feed this climate of xenophobia and hate. This is the only play Trump and Republicans have left, now that their ideas on taxes and health care have been soundly rejected by voters. And, of course, the end goal of fomenting all this hysteria is to hold Congress, precisely in order to further their regressive, deeply unpopular agenda on both those fronts — and, naturally, to protect Trump from the accountability a Democratic Congress would bring.