Wait, Can He Actually Do That? Part 3: Could You Convince Donald Trump You're a U.S. Citizen? (Guest Post by Jacob Hamburger)
Could You Convince Donald Trump You're a U.S. Citizen?
One of Donald Trump’s first acts in his second term was to issue an executive order denying citizenship to children born in the United States to undocumented parents. Since the Supreme Court’s 1898 decision in United States v. Wong Kim Ark, the established view has been that the Fourteenth Amendment guarantees citizenship to every person born within the country’s territorial limits, with minor exceptions for children of diplomats and invading soldiers. Federal immigration statutes have also been drafted against this constitutional backdrop. Trump’s order nonetheless sought to fulfill a longstanding promise on the right to end this rule of near-universal birthright citizenship. The administration is now seeking to defend the order against no fewer than four separate legal challenges, and a federal judge has issued a temporary restraining order against its implementation.
I will not attempt to rehash here whether or not Wong Kim Ark was correctly decided, or why undocumented immigrants and their offspring are “subject to the jurisdiction” of the United States. Plenty of talented scholars have already made the case for universal birthright citizenship under the Fourteenth Amendment, and their work is a resource for those opposing this policy. It is also striking how little the government’s arguments against it today have changed from arguments made decades ago—or even from the government’s losing arguments in Wong Kim Ark itself.
Instead, I will focus on clarifying what it would actually mean to end birthright citizenship in the United States, exploring the unstated consequences of implementing Trump’s executive order (as I do at greater length in this draft article). The title of the order is “Protecting the Meaning and Value of American Citizenship,” which suggests that denying citizenship to the children of undocumented immigrants will enhance the protections of citizenship for everyone else. In reality, the opposite is true. Applying this order will require new and more onerous procedures for verifying status, imposing far greater burdens on all Americans seeking to claim the rights of citizenship.
To see why requires understanding the role of the birth certificate in establishing citizenship in the U.S. federal system. Although we may owe universal birthright citizenship to Wong Kim Ark as a doctrinal matter, as a practical matter there is no universal birthright citizenship without universal birth certificates. For decades after Wong Kim Ark was decided, Chinese Americans continued to face challenges in proving their status while seeking to return to the United States from abroad. At the turn of the twentieth century, the only evidence most Americans had to prove where and when they were born were homemade records or testimony from family members. Federal immigration officials could therefore continue to exclude U.S. citizens of Chinese descent by requiring white witnesses to attest to their place of birth—witnesses unavailable to many residents of ethnic enclaves.
Today, though, nearly everyone born in the United States receives a government-produced record of their birth. The modern administrative and welfare state has made proof of citizenship a requirement for accessing numerous benefits, from passports and social security cards to Medicare, Medicaid, and SNAP. At the same time, the federal government has never opted to create or maintain records of who is a citizen—except for records of naturalizations or citizen children born abroad—and so it relies on state, county, or municipal government offices to produce birth certificates. These sub-federal agencies have developed procedures to collect information directly from hospitals and begin the process of issuing a certificate shortly after a child is born. Given the constitutional and statutory rule of universal birthright citizenship, the result is that virtually all Americans receive, essentially automatically, an official document that proves definitively that they are U.S. citizens.
Trump’s executive order threatens to upend this system—not only for its intended targets of U.S. citizens born to undocumented parents, but for all Americans seeking to access these federal benefits. Specifically, Trump’s order instructs federal agencies not to issue documents like U.S. passports or social security numbers to children without at least one citizen or permanent resident parent, nor to accept state or local government documents such as birth certificates as proof that these children are citizens. To state the obvious, agencies don’t know in advance the status of any particular applicant or their parents. This means that in situations where a birth certificate would suffice today to prove citizenship (such as applying for a passport), everyone would have to provide additional evidence that their parents were citizens or permanent residents as well.
It remains unclear what verification procedures federal agencies would adopt to implement Trump’s citizenship order, but it is likely that many Americans would find it difficult to satisfy such procedures. If my child is born in the United States after the order goes into effect, perhaps I could prove that my child is a citizen with a copy of their birth certificate if that certificate also lists my own U.S. place of birth. Or, perhaps I could also provide a copy of my own U.S. birth certificate. But perhaps not. The order states that it only applies to persons born after February 19, 2025 (e.g. my child), but it is not entirely clear whether this means that I could still use these documents as evidence of my birthright citizenship. Perhaps, then, I could provide a copy of my passport, since only U.S. citizens are eligible to receive them. Even if so, only about half of Americans currently have passports, and the citizenship order might make it more difficult for me to get one.
At the very least, then, implementing Trump’s order will impose an unnecessary amount of additional paperwork—ironic for an administration that claims to believe in “governmental efficiency.” A further irony is that naturalized citizens and permanent residents, who receive documentation through the immigration process, would likely have a much easier time proving their status than many native-born U.S. citizens who may only have a birth certificate.
The difficulties do not end here, though. Consider the implications for the extremely effective process, known as Enumeration at Birth (EAB), currently used to assign social security numbers. Through partnerships with state governments, the Social Security Administration collects the same information that state and local vital records offices use to issue birth certificates. As a result, nearly everyone receives a social security number and card soon after birth, a necessary piece of information (among other very important things) for accepting formal employment as an adult.
In order for EAB to continue if SSA implements Trump’s order, states would have to develop new rules to ensure that hospital staff record the immigration or citizenship status of all new parents. Not only would this mean that all state and local governments would be scrambling to answer the questions I raised above about what counts as sufficient proof of a parent’s status—and many might choose to adopt more onerous interpretations than others. It also means that under any interpretation, if you’re rushing to the hospital while going into labor, you had better remember to bring your passports, birth certificates, or other evidence of your family’s ties to the United States (for example, your parents’ birth certificates, immigration records from Ellis Island, or your family’s ancestry.com profile). If you forget to bring proof of your status, or if you forget to apply for a social security card later on while caring for a newborn at home, your child might find it very difficult later on to claim their economic rights as a U.S. citizen.
Of course, this account of the citizenship order’s unintended (?) consequences does not demonstrate that the order is unconstitutional. The Supreme Court is hardly afraid of overturning established precedent in ways that harm large swaths of the U.S. population. At the same time, Wong Kim Ark’s understanding of birthright citizenship has also been reflected in statutory immigration law. This Court has made it its mission to prevent executive agencies from deciding “major questions” without a clear mandate from Congress. It may be persuaded that—despite its occasional view of exceptional executive authority over immigration—this is an action of too “vast economic and political significance” to be left to an executive order.
Furthermore, even a Court majority sympathetic to the Trump administration’s substantive immigration policies might think twice about blessing an action that harms so many Americans beyond the undocumented immigrants who are clearly its target (and, of course, deserve protection in their own right). This “interest convergence” account may explain in part how we got Wong Kim Ark in the first place. The same Court that upheld the Chinese Exclusion Act nonetheless balked at stripping citizenship from “thousands of persons of English, Scotch, Irish, German, or other European parentage” along with Chinese Americans.
We can try to predict what courts will do with these cases, but more importantly, we should be clear about the choice they are facing. Many restrictive immigration policies have harmful consequences for U.S. citizens, but this order goes much further. I will go as far as to say that it is not an “immigration” policy at all, but rather an attempt to make the protections of citizenship more precarious for everyone. Even while reelecting a man who began his political career by denying the citizenship of his opponents, I doubt this is what last November’s voters thought they were asking for. Let’s hope the courts agree.