Understanding Trump's Executive Orders on Immigration: A Focus on Birthright Citizenship
Trump's attempt to abolish birthright citizenship already lost its first legal battle. But that's only part of the full story.
In support of curiosity
On Monday evening, shortly after being sworn into office, President Trump signed ten executive orders (EOs) related to immigration as well as a slew of other EOs covering climate gender, gender identity, DEI and the naming of geographic landmarks among other things. The immigration EOs (and others) represent what I like to think of as the first draft of Trump’s policy platform now that he is President. I use the phrase “first draft” here because, as I will emphasize repeatedly, these orders are a starting point rather than an end point for how immigration policy will be transformed in the coming weeks and months.
Over the next few issues of this newsletter, we are going to explore these orders together as an opportunity to better understand how the immigration system works (and doesn’t work), as well as develop our collective ability to evaluate the real-world effects and limitations of presidential authority in the area of immigration enforcement. This is no small task. But I also wonder if the dysfunctional nature of our national immigration discourse has convinced us that immigration is simply too impossible to understand. It isn’t. That’s the cynicism talking. We can make sense of what’s going on, even if it does take a little work, and I hope to prove that to you over the coming essays and discussions.
I will try to act as a guide on this journey together. Along the way, we will need to take necessary detours into law, history, and geography (and many other fields) so that build up a common language and knowledge base to ensure that we can stick together on what promises to be a rugged yet rewarding excursion. We don’t have to share the same politics or come to the same conclusions to stay in conversation. In fact, I encourage you to share you perspective, especially when you have a unique perspective that I haven’t considered. If we only bring a commitment to curiosity and honesty to the conversation, we can go far.
Curiosity and honesty doesn’t mean hiding our values, and I will not hide mine. I will be frank with you about my assessment of Trump’s executive orders—that’s what it means to be honest and vulnerable. At the same time, I will remain curious: curious about my own possibly unidentified assumptions and values, and curious about your assumptions and values so that I can improve my own understanding.
How this approach is different
I also want to be clear about what this is not. Most of the analyses about the executive orders you may read elsewhere tend to focus on a few main goals, including the following:
to prepare for policy advocacy, litigation, and client representation
to drive the news cycle through articles that convey the most distilled and impactful highlights
to represent the critical or supportive positions of non-profit organizations in the interest of their members or the alignment to their mission
None of these are wrong or bad; in fact, they are often the right approach to take—for other people. These goals are simply not what I am interested in doing here. I am not taking a specific policy position or queueing up for litigation, I am not a journalist (although I do work with journalists), and I am not writing to represent a specific mission of any organization. All of those are great. But if you are the one consuming this information, you are seeing the results of analysis, but you are not necessarily being brought along on the journey of analysis. In fact, sometimes the most important headlines interrupt our ability to arrive at deeper observations—even when those headlines are true.
This is where I hope to offer something different. I would like to try to bring you along with me not because I want you to understand every detail of each executive order, but because I want you to leave with a more developed framework that will empower you to better assess these (and future) immigration policy changes for yourselves. This is not because I think everyone should be immigration policy experts; rather, it is because I do not believe you need to be an immigration policy expert to begin to make sense of most immigration policies. I believe that it is better to raise all of our knowledge together rather than defer to technocrats to do our thinking for us. And I certainly do not want the burden of being seen as a source of objective truth.
The birthright citizenship order
Enough preamble. We need a place to start. So let’s start with Trump’s EO on birthright citizenship for the simple reason that it was in the news. (Spoiler alert: a Seattle judge temporarily suspended this executive order.)
Let’s start with the basics. The title of this executive order is “Protecting the Meaning and Value of American Citizenship,” but I will just refer to it as the birthright citizenship order. For now, I can only reference it through a link to the White House website where the order is posted. But soon it will logged in the Federal Register here and given an identification number: “EO” followed by five digits that increases incrementally with each order. The last EO from President Biden was EO 14144, which means one of Trump’s EOs will be EO 14145, and so on.
As I noted elsewhere, the formatting of EOs online make them tricky to read and the links may degrade or change over time, making them difficult to locate again. This is why, when I got started this week, I reformatted them with proper indentation and made them publicly available online. Here’s the file for this EO, but I’ll include images of both versions of it below so you can see the difference.
Examining the EO’s structure & the 14th Amendment
Now that we have the order itself, let’s make some notes about the form and content of the EO, including those features that extend to the other 10 immigration EOs. When reading political documents, it is often helpful to make some of these initial distinctions so that we don’t get overwhelmed. This EO, like most of them contain three main sections:
An opening diatribe, sometimes written as a preamble or sometimes labeled as Section 1, typically with a variety of assertions of varying quality that purport to justify the second part.
Policy directives, also of varying scope and quality, that rescind old policies, modify current policies, or create new policies.
General provisions that basically say: this policy should be interpreted and implemented without contradicting other existing laws.
Part 1 of the birthright citizenship EO is unique among the ten immigration EOs in that launches straight into a very specific seemingly hair-splitting legal argument over the 14th Amendment to the Constitution. (We’ll see why in a moment.)
The first sentence of the 14th Amendment says this: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” There is no legitimate mainstream legal question about the meaning of the 14th Amendment: anyone born in the United States is a citizen. (There are some relevant exceptional situations involving Native Americans, foreign diplomats, and the Amish, but let’s stay on track for now.)
Background on citizenship
Let’s talk about types of citizenship for a moment—and, trust me, this is going to come up again later.
Birthright citizenship is so common sense to us in the US that we often forget that this form of citizenship is not universal. Birthright citizenship is what is known as jus soli citizenship, or “right by soil”. This is the mode of acquiring citizenship that predominates in the Americas (North and South) as well as Western European countries—although many European countries place some restrictions on jus soli citizenship, as well.
The other mode of citizenship is known as jus sanguinis or “right by blood”. This is the mode of acquiring citizenship that predominates in Eastern European and Asia. (For the moment, let’s suspend our legitimate curiosity over why there are geographic patterns to passing on citizenship, but let’s just say it had a lot to do with the history of colonialism around the time of the emergence of the nation state.)
Each of these forms of citizenship are imperfect and each create their own conundrums. Germany provides us with an illustrative example. For a long time, generations of Germans who remained trapped outside of Germany in Eastern Europe behind the Iron Curtain were allowed to return to Germany with full citizenship because the citizenship of one’s parents and grandparents could be passed down “through lineage (i.e., jus sanguinis).
At the same time German Turks, whose parents came to Germany to work as Gastarbeiter after World War II and who never received citizenship, still could not obtain citizenship generations later (because there was no strict jus soli citizenship). You can see why a critique easily emerged that the form of acquiring citizenship in this fashion leads to unequal effects with racial implications.
By the way, the United States is not without its own jus sanguinis citizenship either. Suppose that two US citizens have a child while traveling abroad. Is that child a US citizen even though US is primarily a jus soli country? The answer is: yes, that child still possesses US citizenship (given certain conditions, of course).
Undermining the 14th Amendment
Back to the 14th Amendment. The 14th Amendment did not invent jus soli citizenship in the United States, nor did it resolve all of the questions surrounding the rights of citizens. For example, whatever citizenship meant for women, it certainly did not include the full rights of citizens, such as the right to vote. But the 14th Amendment did establish birthright citizenship as the mode by which citizenship would be handed down in the wake of slavery and the Civil War.
Despite this established precedent, there is a fringe theory out there that says that the 14th Amendment has been misunderstood all along and that it never meant to apply birthright citizenship to everyone. In Citizenship without Consent, Peter Schuck and Rogers Smith challenges the principle of birthright citizenship in the United States as currently interpreted under the 14th Amendment. The authors argue that the U.S. practice of granting automatic citizenship to individuals born on U.S. soil—regardless of the immigration status of their parents—does not align with its original intent.
Whether Schuck and Smith came up with the argument or simply popularized it, the idea has spread among think tanks on the political right, who see this as an opportunity to deny citizenship to the children of immigrants who are in the country without papers. In short, this has been in the background for several years now, although it hasn’t been taken very seriously or actually tried—until now.
Paragraph one of the birthright citizenship EO summarizes the 14th Amendment’s relationship to slavery, but then presents the Citizenship Without Consent fringe argument in its simplest form as if it were self-evidently true. It says:
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
You can see that the battle over birthright citizenship purports to hang on this one clause of the 14th Amendment, which the Trump administration appears to believe means that people who are in the United States unlawfully are “not subject to the jurisdiction” of the United States—and therefore can’t pass down citizenship.
“Not subject to the jurisdiction of the US”
Let’s pause on this notion of “immigrants not being subject to the jurisdiction” of the United States, because I want to cross this argument with a different executive order, the one titled “Restoring the Death Penalty and Protecting Public Safety.” I’ll refer to this as the death penalty EO.
This EO claims that capital punishment is the ultimate deterrent (criminological research does not support this) and that it enjoys broad public support (about 50% of the public supports it, according to recent polling). This EO directs federal prosecutors to pursue the death penalty against in the case of any “capital crime committed by an alien illegally present in this country.”
How would prosecutors pursue capital punishment in court against immigrants who are, according to the birthright citizenship EO, “not in the jurisdiction of the US”? This is just one point of obvious contradiction that emerges when one reads the EOs alongside each other collectively.
An attempt to end jus soli citizenship
But there’s more to the birthright EO. The policy says that children born in the US to undocumented parents will not get citizenship, even if the mother is in the country lawfully on a temporary visa. This EO is not restricted only to undocumented immigrants but immigrants in the country lawfully, as well.
This raises practical questions in addition to legal ones. One of the under-appreciated conveniences of jus soli citizenship is that it’s fairly straightforward to administer. As long as you have record of where someone is born, you know whether they qualify for citizenship. But Trump’s EO attempts to bring back in questions about the legal status of the parents of a child, too. This complicates things enormously. Let’s remember that, due to the contingencies of the vast and broken immigration system, it’s not as easy as it sounds to go back and interrogate the legal statuses of both parents of a child to determine citizenship.
Most children do not ever need to prove anything about their citizenship for years. This order, if it were to go into effect, would require the federal government to adjudicate complex questions involving immigration law years or even decades after someone’s birth. It’s not as if there will be officers stationed in every delivery room to determine who is a citizen and not a citizen on the spot. This work would have to be done later, perhaps even when a person is suddenly facing deportation in court.
Moreover, there are untold numbers of citizens in the United States today who would not have been citizens at all if they were born when this law was in place. This retrogressive policy would effectively create a two-tier class system even more pronounced than the one that already exists.
There is one final nightmarish scenario that this executive order creates. If implemented, this EO would create an entire class of stateless people in the United States—including, let’s remember, the children of two parents who were both legally in the US—who would go on to have children who were also, therefore, not US citizens and so on.
The long-term complications and damage that would be caused by this EO would be staggering. It means that immigrants would not only have their own legal status scrutinized throughout their lives (as they already do), but that this form of legal precarity could extend, in perpetuity, to their children and grandchildren in convoluted ways that could produce an enormous underclass, not to mention widespread bureaucratic confusion.
Seeing the bigger picture
The fact that that this EO has already faced it’s first defeat is a win for common sense and legal precedent. The Seattle judge that issued a temporary restraining order dressed down the government’s attorney and gave the following unequivocal assessment:
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.”
That’s the crucial headline. But if we only pay attention when someone wins or loses in court, we are going to miss much deeper lessons in the birthright citizenship EO and in other EOs. There are two points I want to make in closing.
First, no matter how eccentric this EO is on it’s own, there is an underlying principle that extents to other EOs: namely, that immigrants who were not born as citizens to citizen parents will face a lifetime of perpetual social exclusion and “extreme vetting” as a part of the rest of their lives. The EO called “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats” calls on agencies to re-vett migrants who are already in the country lawfully as well as to strip naturalized citizens of their citizenship. Thus, whether this one EO will go into effect or not, we can discern a broader vision for the perpetual exclusion of immigrants, in many cases whether they are in the country lawfully or not.
Second, let’s put this principle of perpetual exclusion and the attempt to add a mountain of restrictions to jus soli citizenship in a global context. The United States is not the only place that has entertained this type of regressive policy. In the early 2000s, India one of the first countries to effectively create a policy similar to what Trump is trying to do. Like the United States now, birthright citizenship was rolled back in India as part of nationalist movement in response to undocumented migration from Bangladesh and other surrounding countries. Nationalist movements have long sought scapegoats to justify major conservative reforms, and we are seeing this unfold before us now in real time.
The birthright citizenship EO is down but it’s probably not out yet. The Trump administration is setting up for a Supreme Court battle and they’ll probably get it. In the next post, we’ll look more closely at the dangerous consequences of Trump’s executive orders for asylum seekers along the US-Mexico border.
What do you think?
I’ve shared how I think about the birthright citizenship EO. Now it’s your turn: what do you think? Do you think we should end birthright citizenship or protect the 14th Amendment?
For further reading
If you want to dive deeper into the politics of citizenship, here are some resources I highly recommend. Please share resources that you know about in the comments.
Composite Nation by Frederick Douglass. Douglass was speaking about the importance of unity and expansive citizenship at a time rife with anti-Chinese hatred. Have your mind blown by how much of what Douglass said about the controversies surrouding immigration and citizenship then still applies today.
Being Political by Engin Isin is a terrific (albeit academic) study of the ways in which citizenship has always been controversial and subject to periods of expansion, retraction, and redefinition.
The American Immigration Council created an accessible explainer of birthright citizenship last fall. This is a great resource if you’d like to learn more.
I also encourage you to read Pablo Andreu’s essay on what birthright citizenship means to him. He runs a great blog with one of the best titles I’ve ever seen.
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Thanks so much for your wonderful introduction to the work of actively understanding immigration policy! I do think it's important to know as full a history as possible of the 14th Amendment, including its racialized and genderized limitations that lasted far beyond the end of the Civil War. It took a few more decades for us to reach the Wong Kim Ark SCOTUS decision conferring citizenship on people of Chinese descent who born in the US. Interestingly, the whole case started because Wong was living in El Paso and went a few blocks south, to Juarez (Mexico) for a visit. He was stopped at the bridge, trying to come back to his home.
And you mention that Native Americans did not get citizenship until 1924. I don't consider this a side issue, mainly because the notion of tribal membership versus people living according to white, Anglo norms was operative here (if you belonged to a tribe you weren't a citizen, whereas if you had left the tribe and were living as an individual, you could be a citizen).
In addition, until well into the 20th century, women born in the US and living in the US who married non-citizen men had to take on the citizenship of the husband (it did not work vice versa). These women lost their ability to vote. As a side issue, I believe Emma Goldman was deported because she'd married a US citizen and obtained his citizenship but later divorced him, or he died, or both, and the government then deemed her a deportable foreigner and booted her out. She'd lost the jus-soli-by-proxy perk of her ex. But in converse, native-born US women could lose their jus soli by marrying.
The long and short of it is that decades went by before jus soli., with related issues, was fully settled in the US. Nevertheless, it's now been settled for generations. Seemingly and sadly, however, it's still politically vulnerable.