Don’t worry about Trump’s birthright citizenship order — it’s not going anywhere

In the flurry of executive orders Donald Trump issued on his first day back in the White House, one stands out — his order outlawing birthright citizenship.

Trump is attempting to prevent the federal government from recognizing the U.S. citizenship of anyone born in the U.S. who didn’t have at least one parent who was either a U.S. citizen or a legal permanent resident at the time of birth.

Trump and MAGA World don’t like birthright citizenship because it means that all children born on U.S. soil automatically become U.S. citizens, even if their parents were in the U.S. illegally. Abolition of birthright citizenship isn’t a new idea — it has been floating around in alt-right circles for years. Trump himself talked about ending it back in 2019. So the order itself did not come as a surprise.

Despite having been around for so long, the legal argument behind this idea isn’t very well developed. It ranges between the argument that the Supreme Court case U.S. v Wong Kim Ark, doesn’t actually say that all children (with a few minor exceptions) born in the U.S. are automatically citizens, and complaints that birthright citizenship is just a bad idea.

However, this is legal nonsense. You can argue that we ought to amend the Constitution to eliminate birthright citizenship, but the legal theory, such as it is, that birthright citizenship hasn’t been firmly established by the Supreme Court doesn’t pass the snicker test.

In short, the argument is about whether the phrase “subject to the jurisdiction of the United States” means “subject the laws of the United States.” In U.S. v. Ark, the Supreme Court said it does. The “birthies” — people who dislike birthright citizenship — claim it doesn’t, and that the only people who qualify for birthright citizenship are people who are not citizens of other countries at birth.

There are lots of problems with this, some of them pretty comical. For example, if this argument were correct, many Americans — probably tens of millions — would discover that they were not actually U.S. citizens, even if their parents were. That’s because many countries automatically grant citizenship based on the original nationality of your parents. For example, you may be an Italian citizen if any of your ancestors was an Italian citizen going right back to the founding of Italy.

This is really bad news for any political aspirations Donald Trump Jr. might have, since he inherited Czech citizenship at birth from his mother, Ivana. In fact, she didn’t become a U.S. citizen until 1988, long after Donald Jr., Ivanka and Eric were born. Having a U.S. citizen as a father wouldn’t save him since, under current law, only children born abroad can inherit citizenship from a U.S. citizen parent.

Trump’s executive order doesn’t get into the theory, but it does try to give the Supreme Court some wiggle room so that it can uphold the order without actually overturning Ark. Under its terms, legal permanent residents would be able to confer U.S. citizenship upon their children, even if one parent were in the country illegally. But those born to parents in the U.S. on student or work visas would not be citizens, even if their parents were here legally. Yet under current laws, assuming arguendo that birthright citizenship has been abolished, I see no reason why even having a parent who is a permanent resident would qualify anyone for citizenship.

And that's the thing. Ending birthright citizenship isn't about legal consistency or logic. It’s a foregone conclusion in search of a justification.

If Trump’s order had been in force when she was born, Kamala Harris would not have been recognized as a U.S. citizen — although Trump Jr. would be in the clear. Although she was born in California, her parents were from India and Jamaica and met in California while they were students. Just imagine — Barack Obama thought he had it bad with the birthers constantly hassling him about his birth certificate.

This effort to end birthright citizenship is just Trump tossing red meat to MAGA. None of it is actually going to happen. Even the order itself recognizes this. That’s why it takes effect in 30 days rather than immediately. Sure enough, the ACLU filed a lawsuit to declare the order unconstitutional within hours of its release. Eighteen states soon followed.

Trump’s order will inevitably be blocked by the courts and will certainly be appealed to the Supreme Court, which will hopefully refuse to hear the case. The wisest thing would be to let Trump’s attempt to unilaterally rewrite 125 years of settled law on American citizenship lapse into obscurity with as little fuss as possible.

But who knows? Wisdom at the court has lately been in short supply.

Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.

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