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American birthright citizenship, and the associated rights and liberties, is core to the American experiment. The idea that someone born in the fifty states, regardless of their race, gender, status, or parents’ country of origin, is entitled to all of the freedoms, protections, and civic responsibilities that the United States has to offer, is an incredibly compelling one. American citizenship is intrinsic and inalienable. It has given us some of the nation’s best and brightest and created a distinct national identity; we can recognize our distinct ethnic, religious, or regional differences while living in the same communities, voting together, catching a football game, and so on. It unifies us – we are all “one America.” It is what allows American communities to become cohesive and truly great; removal and separation breaks down the communities that make up our nation. It is this integral, compelling core value that is being challenged by recent executive orders by the Trump administration.
Mere hours after being inaugurated again, President Donald Trump signed an executive order “Protecting the Meaning and Value of American Citizenship.” In doing so, the Trump administration seeks to “protect” American citizenship by redefining birthright citizenship to require both parents of a child to, at minimum, be legal residents of the US (green card holders) or full citizens. Prior to this, any child born on US soil was granted birthright citizenship, regardless of their parents’ legal status or nationality. This principle was codified in the 14th Amendment, which was designed to overturn the court precedent established in Dred Scott v Sanford, the landmark 1856 Supreme Court case that denied African-American slaves American citizenship despite being born on American soil. It was further solidified in another SCOTUS case, United States v Wong Kim Ark, in which a Chinese-American born in San Francisco had been denied citizenship on the basis that his parents were Chinese nationals during the time of the Chinese Exclusion Act, even though his parents were considered permanent residents of the United States. Ultimately, in the case Wong Kim Ark was found to be a citizen, therefore establishing the precedent that the parents’ origin is irrelevant to the citizenship status of their child. Birthright citizenship applies in almost all cases, with children of foreign diplomats being the only exception, as they’re not “subject to the jurisdiction” of the United States. The question is, how does this executive order overturn years of legal convention?
It is that exact phrasing in the 14th Amendment, “subject to the jurisdiction thereof” (meaning the jurisdiction of the United States) that the Trump administration has used to justify the executive order. In essence, the executive order asserts that a child born to parents that are not in the United States legally or are in the United States temporarily (on a visiting or student visa) is therefore not subject to the jurisdiction of the United States, but rather the parent’s country of origin. In other words, the administration has exploited the vagueness of the terminology to say that the US has no legal responsibility to someone whose parents do not hold permanent residence in the US. Executive orders, from a legal standpoint, are used to direct how the executive branch should enforce legal policy; often, they are used to enact policy that would otherwise be legislatively difficult, but it is still possible to legally challenge or prevent an executive order through the legislative and judicial branches. For the time being, a federal district court judge has blocked the order temporarily on the grounds that it is built off a bad-faith constitutional interpretation, calling it “blatantly unconstitutional.” But, the directive still holds political weight; it makes good on Trump’s political promises, yes, but it also establishes a more essentialist view on what it takes to be an American, especially in the context of the country’s changing demographics and rising rates of global migration. Moreover, it is an order that, while likely to be overturned, still inflicts fear in both his political opponents and any prospective migrants.
Where do we go from here? Should the case go to the Supreme Court, there is a good chance that even the Trump-appointed justices break from the administration. Justice Amy Coney Barrett has been shown to break rank in favor of logical and clear constitutional rulings, highly valuing her own conservative principles and not wanting to serve as a mere pawn to the Republican agenda. Chief Justice John Roberts places high value on judicial precedent; this is evident in his concurring opinion in Dobbs v Jackson Women’s Health Organization, in which he emphasizes judicial restraint and stare decisis. Justice Neil Gorsuch has also occasionally taken more diverse ideological stances, authoring the majority opinions in Bostock v Clayton County and McGirt v Oklahoma, opposing discrimination on the basis of sexual orientation and in support of the sovereignty of Native American lands. Something with this clear of a judicial precedent is unlikely to be overturned easily, but it is still a possibility; in recent years, the court has shown a willingness to overturn long-held precedent, especially given the recent decisions overturning Roe v Wade and Chevron v NRDC. More than that, however, this executive order has opened the political and ideological floodgates. The country is facing an intense, vehement reckoning over immigration, from the looming crackdown on irregular migration to the political battles over H-1B (work visa) recipients. Amid these political battles, we again ask, what is the meaning and value of American citizenship? Who deserves to be a citizen? This executive order may well be a step toward a narrower, more exclusive definition of what an American citizen is.
