In the United States, birthright citizenship was embedded in the Constitution along with the abolition of slavery.Jacquelyn Martin/The Associated Press
Debra Thompson is a contributing columnist for The Globe and Mail.
It is just one of many, many changes wrought by the Trump administration over the past six months, but it is among the most consequential, the most conniving, the most alarming affront to the American constitutional order of the past 150 years.
Birthright citizenship – jus soli, right of soil. In the United States, birthright citizenship was embedded in the Constitution along with the abolition of slavery. It was a constitutional corrective to the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which declared that no person of African descent, even those born free, were American citizens. The Fourteenth Amendment granted citizenship to African Americans and simultaneously extended it to all those born on American soil, making e pluribus unum (“out of many, one nation”) both a motto and a constitutional right.
Mr. Trump threatened to use an executive order to end birthright citizenship during his first term, and on the first day of his second term in office, he did. The order, “Protecting the Meaning and Value of American Citizenship,” disallows the issuance and recognition of citizenship documents for children born to either an undocumented mother or a mother in the country legally, but temporarily (e.g. on a temporary work visa) and fathers who are neither a citizen nor a legal permanent resident.
Appeals court blocks Trump’s effort to end birthright citizenship, finds it unconstitutional
Legal experts generally agree that this order is unconstitutional and court challenges were filed almost immediately. The case that made its way to the Supreme Court, however, wasn’t about whether a president can unilaterally extinguish a constitutional right; it was about the rather technical legal question of whether federal district courts can issue universal injunctions that block a presidential order, constraining the executive branch from acting against individuals beyond those implicated in the initial lawsuit.
And in answer to this prickly question, in a 6-3 ruling the Supreme Court limited the power of federal judges to impose nationwide rulings to block Mr. Trump’s executive orders, completely sidestepping the key constitutional question of whether a president can unilaterally upend more than 150 years of legal jurisprudence and end birthright citizenship.
The Supreme Court’s decision, which essentially gives Mr. Trump the ability to do what he wants without the critical check on executive power that courts are supposed to wield, was set to take effect this weekend. For now, it has been blocked by the July 10 certification of a nationwide class-action lawsuit by a New Hampshire District Court. A federal appeals court ruled on Wednesday that Mr. Trump’s executive order directly contradicts the 14th Amendment, setting up another Supreme Court showdown in the near future.
Whether this particular legal battle will become a preoccupation of the Trump administration, amid so many other executive orders and attempts at presidential overreach, remains to be seen. But should Mr. Trump decide that the attack on birthright citizenship is a battle he wants to wage (or a useful distraction to draw attention away from the Epstein files), the implications are astounding.
Birthright citizenship is not the only or even the most popular way that countries denote who can and cannot hold rights, participate in the political sphere, and be an irrevocable member of the political community. But in the United States, it is a core constitutional right. It has both a symbolic weight and offers fundamental legal protections in a country perpetually at odds over who truly belongs.
Analysis: U.S. Supreme Court ruling jeopardizes birthright citizenship
This most recent attack is undeniably ideological. In Mr. Trump’s worldview, birthright citizenship is tightly tied with his priorities to curb immigration, secure borders and redefine American identity. Citizenship is most often associated with the right to vote, but more importantly confers the right to remain. To leave and come back. You cannot be denied entry to your own country, my brother, who decades ago worked as a Canadian immigration officer, once told me. They have to let you come home.
The Trump administration claims that its efforts will preserve and protect the meaning and value of American citizenship. They are instead an attempt to wield citizenship as a weapon. This executive order threatens to limit access to citizenship for the masses and will inevitably increase the administrative burden of proving citizenship for those for whom it has previously been automatic. Mr. Trump has threatened to revoke citizenship from his political opponents (or those he just doesn’t like), enabled the Department of Justice to strip citizenship from naturalized Americans charged with certain crimes, and created a path for wealthy foreigners to buy it through the “gold card” program for the low, low price of US$5-million.
The proposed end to birthright citizenship is the hallmark policy of an America that seeks to close and bolt its doors to the huddled masses. The deeper lesson, however, is that nothing is absolute or untouchable, even and perhaps especially the constitutional order. Everything can be undone.