Dear Reader,

The 14th Amendment to the United States Constitution provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The provision is the source of the concept of “birthright citizenship,” which gives rise to citizenship for anyone born on United States soil, regardless of the immigration status of their parents. It’s right there in the Constitution. But that doesn’t seem to matter to Donald Trump.

The qualifying language in the amendment, “and subject to the jurisdiction thereof,” has historically been used to carve out limited exceptions to birthright citizenship. For instance, U.S.-born children of diplomats, who are not subject to the jurisdiction of our laws and have immunity for criminal conduct, are not American citizens. But by and large, the exception has been narrowly construed. That is, of course, until Donald Trump decided he wanted to put an end to birthright citizenship.

That should be hard to accomplish. Trump may want to put an end to birthright citizenship, but that alone is not enough to make it happen. Although he told Kristen Welker on “Meet the Press” earlier this month that he hoped to do it with an executive order, that seems unlikely as well. There’s the inconvenient fact that the Constitution limits a president’s power. Executive orders can’t undo the Constitution. Conservative Judge James Ho, a Trump appointee to the Fifth Circuit, concluded in a 2006 essay before he went on the bench that “a constitutional amendment is … the only way to restrict birthright citizenship.”

Congress ratified the 14th Amendment in July 1868 after the Civil War ended, ensuring that birthright citizenship would protect former slaves and their children by granting them U.S. citizenship. Before that, the Supreme Court had ruled in the notorious 1857 Dred Scott decision that enslaved people and their descendants were not citizens, were not eligible to become citizens, and were not entitled to any protection under its laws. The 13th and 14th Amendments overruled Dred Scott, and the promise of automatic citizenship they carry for those born in this country has endured. It has been applied for 155 years and counting, including by the Supreme Court, without regard to the parents’ immigration status. The 14^th Amendment prohibits states from overriding the privileges it provides, in this case citizenship, or from enforcing laws that would revoke birthright citizenship.

But that history doesn’t matter to Trump. “We’re going to end that because it’s ridiculous,” he said on “Meet the Press.”

Of course, if Trump attempts to end birthright citizenship, there will be lawsuits. And they will likely succeed in the long run. Even this Supreme Court would struggle to flout a clear provision in the Constitution, especially given its long arc of confirming that the 14^th Amendment guarantees birthright citizenship in cases like U.S. v. Wong Kim Ark and Plyler v Doe. There is also a federal statute that provides for birthright citizenship.

While the current Supreme Court has defied precedent with rulings like Dobbs, the case eliminating the constitutional right to an abortion, and shocked with its decision to give Donald Trump broad presidential immunity, it is far less likely to go off the rails when it comes to birthright citizenship. The practice is consistent with the plain language of the 14^th Amendment. The Court has interpreted the provision to do precisely what its language suggests: guarantee citizenship to people born in this country.

The opponents of birthright citizenship truck in anti-immigrant animus and legal contortion. Trump has claimed, “this current policy is based on a historical myth and a willful misinterpretation of the law by the open borders advocate.” The notion that there is some  misinterpretation of the law here is centered on the language of the 14th Amendment, limiting birthright citizenship to people who are “subject to the jurisdiction” of the United States. Trump’s claim is centered on a fringe argument that children born in the United States to people who lack legal immigration status don’t qualify. But that argument is frivolous. It makes little sense since both the parents and the child are in fact subject to our laws—they can be arrested and are otherwise subject to the jurisdiction of the United States in ways that people with diplomatic status, the best example of a group of people who are deemed not “subject to the jurisdiction” of our laws, can’t be. Even Judge Ho, in his essay, disagreed with this outlandish view, writing that undocumented immigrants were not among the groups of people that phrase excluded from birthright citizenship.

So what’s the endgame? Trump can’t do away with birthright citizenship in a day one executive order. He can try it, but it won’t last long. Even presidents can’t arbitrarily revoke or refuse to grant citizenship and hope the courts will go along. If Trump was to select people in a retaliatory fashion or go after a protected class—much of the animus towards immigrants seems to center on brown-skinned people, not the Swedes among us—that’s just asking for legal trouble. Strict scrutiny is still a thing. Nonetheless, Trump made this a campaign promise and is almost bound to try to make good on it.

The real problem is, what happens when Trump’s efforts fail, as they inevitably will at some point? It’s easy to imagine him railing against the civil rights groups that challenge his actions to end birthright citizenship and the judges who uphold the law. Trump could goad his followers into demanding that their elected representatives “do something” since the wicked courts are blocking his important actions. And the question is, just how bad will that something be?

The possibilities are unlimited. Trump could, for instance, use any case that blocks his plans to end birthright citizenship to justify the massive detention centers he reportedly intends to build to facilitate his mass deportation plans. He could use it to justify holding people in camps. It could go sharply downhill from there, and only time will tell how far. When hatred for “the other” intersects with a willingness to abandon the protections of law for people, there are few, if any, boundaries. Birthright citizenship is meant to guarantee the promise of America to everyone who is born here. How petty to try to take that away.

Stay Informed,

Joyce