Wednesday, August 28, the Trump administration announced a new policy limiting the extension of citizenship to children born abroad to military service members and government employees. The announcement was immediately met with a massive wave of condemnation and confusion. Due to its vague wording, many initially believed the policy would mean every child born to this group of citizens abroad would no longer automatically be a citizen. U.S. Citizenship and Immigration Services quickly tried to control the damage and assure people that most children would be unaffected by the changes. Nonetheless, the policy is an attempt to curtail the number of foreign-born children who can have access to U.S. citizenship.
This move comes just one week after Donald Trump renewed his attacks against birthright citizenship, and once again claimed that he could end the constitutionally protected status by simply issuing an executive order. The current policy move by the administration is only the latest attempt by Trump and conservatives to enact a wholesale constitutionalrevolution by dismantling birthright citizenship.
Citizenship has always been a fairly amorphous status. Like a liquid, it can take the shape of its surroundings at a moment’s notice. Over the course of American history, citizenship has expanded to include and contracted to exclude. To this day, citizenship still lacks a formal legal definition and is only mentioned a handful of times in the Constitution. It was originally imagined to have very few actual rights associated with it. Nonetheless, throughout this country’s history, citizenship has been seen as a beacon on a hill, or a North Star, to ensure rights and protections.
Such was the case for African-Americans for nearly a century between the adoption of the Constitution in 1789 and the ratification of the Fourteenth Amendment in 1868. Scholars such as Martha S. Jones, Elizabeth Stordeur Pryor, Andrew Diemer, and a host of others, have shown how contested citizenship was throughout the first half of the 19th Century. When the Fourteenth Amendment was ratified following the end of the Civil War and the emancipation of this country’s millions of enslaved people, citizenship was fundamentally changed. The first section of the amendment read, in part, “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.” The point of this section was to ensure, in the face of a long history of racism and chattel slavery in America, that Black Americans could not be denied formal inclusion within the United States.
However, just as quickly as citizenship was finally extended within this country, the promises it had once held out to Black Americans were withheld. For a century, Black Americans amounted to, at best, second-class citizens, until the end of legal Jim Crow segregation and discrimination, the extension of civil rights, and the protection of voting rights.
What citizenship did for people, however, was to give them a place from which to make a stand for further rights. Citizenship has continually been a means to an end, a path to the promises embedded in the Declaration of Independence: “All men are created equal.” Birthright citizenship radically altered this opportunity, by extending to everyone born within this country a status that could not be taken away from them. If citizenship is a status of potential futures, birthright citizenship opened new futures to millions.
These very futures, however, are under attack. Donald Trump has been quite vocal about his disdain for birthright citizenship. Trump made waves during his presidential campaign when he said the children of undocumented immigrants weren’t citizens. Just last year, Trump claimed he could end birthright citizenship by executive action, something he has reiterated in recent days.
His condemnation of birthright citizenship, however, is not out of the ordinary for conservatives. Five years before Trump kicked off his campaign, Senator Lindsey Graham went on Fox News to say “birthright citizenship I think is a mistake…We should change our Constitution and say if you come here illegally and you have a child, that child’s automatically not a citizen.” Other Republicans, including Mitch McConnell and John McCain signaled their own approval by supporting calls for Senate hearings on the matter.
Even those conservatives who seem to criticize Trump’s actions or his comments often fall short of going against the core assault on birthright citizenship. Take, for example, Former Speaker of the House Paul Ryan’s response to Trump’s October 2017 remarks that he could end birthright citizenship through executive action. It garnered widespread condemnation from both political parties. Calling such a move “unconstitutional,” Ryan nonetheless found common ground when he said that conservatives wanted to address the problem of illegal immigration. The rhetorical move on Ryan’s part, of tying birthright citizenship to the problem of illegal immigration, still presented the status as a root cause of the problem. Ryan’s lukewarm criticism of Trump’s opinions on the Constitution have since given way to increasingly upfront attacks on birthright citizenship.
In January, during his confirmation hearings, Attorney General William Bar refused to acknowledge birthright citizenship was even part of the Fourteenth Amendment. When asked by Senator Mazie Hirono about his opinions on the matter, Barr attempted to punt the issue by claiming he hadn’t “looked at” the issue. Yet, he also claimed Congress could legislate on the issue, betraying his former claim to not be familiar with the issue. Only a person who was invested in dismantling birthright citizenship and had actually looked at the issue would have made such a claim, considering the widespread acceptance by everyone besides conservatives of its centrality to the Fourteenth Amendment.
As conservatives have increasingly embraced an extra-constitutional solution to birthright citizenship, Trump and his administration continued to institute harsher and harsher immigration policies. While it may appear at first glance that these policies are aimed at undocumented migrants, they actually serve a dual purpose.
One only needs to look at the numerous cases of U.S. citizens who are picked up and detained by the government to know this administration’s policies are not only meant to curtail unwanted migration of immigrants, but are also aimed at destroyingbirthright citizenship. Since its inception of U.S. Immigration and Customs Enforcement (ICE) in 2005, the agency has falsely detained U.S. citizens. A recent study found ICE, from 2005 to 2017, likely detained thousands of citizens in Texas alone. The number of citizens detained is likely to increase in the future, as the Trump administration has just announced a new policy, expanding a practice known as “expedited removal.” Expedited removal allows ICE agents to decide a person’s immigration status, often without the review of a judge, depending on what documents that person can produce at a moment’s notice. While expedited removal had previously only applied to people within 100-miles of the border, the administration has now empowered ICE to use the process across the entirety of the United States. Expedited removal leaves people to the whims of individual ICE agents, removing the possibility of due process through a court hearing. Considering ICE’s blatant refusal to accept proper documentation when detaining U.S. citizens, it is only logical to assume this new policy will subject untold numbers of citizens, and lawful residents, to being falsely swept away.
Why are Trump, his administration, and conservatives so invested in undermining birthright citizenship? Besides the obvious racism, the answer is becoming increasingly clear with time: power. The end goal was shown recently when Trump and Attorney General Barr held a press conference on the defeated census citizenship question. While speaking about the administration’s efforts to continue compiling citizenship data on the population, Barr explained that “there is a current dispute over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data [the number of citizens] may be relevant to those considerations.” In other words, Barr said conservatives want to use citizens, and only citizens, when counting the number of people within a district, a state, or even the nation. By doing this, conservatives could continue in their efforts to hold onto political power, even though they are the numerical minority.
This admission by Barr came days after the Supreme Court played into conservative’s hands by declaring it was not within the federal judiciary’s jurisdiction to rule on political gerrymandering. While many people rightly pointed out this decision was a disaster for democracy, the Supreme Court also signaled an opening for conservatives in their fight against birthright citizenship. By taking a hands off approach to political gerrymandering, the Court has all but said that if, and when, conservatives enact the sort of laws Barr spoke of, they can count on the Court’s implicit, if not explicit, sanction. Such a move by the Court would pave the way for conservatives to change the very definition of citizenship through policy alone.
This, however, would not be the first time this has happened. Take, for example, Puerto Rican citizenship. As scholar Sam Erman has shown in his new book on Puerto Rican citizenship, at the turn of the 20th century the U.S. government took similar steps to define who could and could not be a citizen of the country. Largely through policy and legislative actions, the U.S. government was able to ward off attempts by Puerto Ricans, who had just been forcefully included within America’s growing oversees empire, to claim citizenship. For decades, the government attempted to deny the constitutional extension of citizenship to the island’s residents. The Supreme Court largely acquiesced to this strategy, refusing, on many occasions, to rule on the matter. Considering the behavior of the Court in recent years, it is not too much to think the Justices would revive this strategy and either refuse to get involved, or rule so narrowly as to allow overall policies to stay intact.
The long term strategy of conservatives illustrated here also indicate, once again, their true thoughts on who constitutes the citizenry of the United States, i.e. white Americans. Nothing better illustrates the links between birthright citizenship, immigration policy, partisan gerrymanding, and the long held racism of Trump and his fellow conservatives than Trump’s own attacks on four Congresswomen of color. In a series of tweets aimed at Illhan Omar, Alexandria Ocasio-Cortez, Rashida Tlaib, and Ayanna Pressley, Trump declared that those who were unhappy with the United States should “go back and help fix the totally broken and crime infested places from which they came.” Even though only one of these Congresswomen, Omar, was born outside the United States, Trump and conservatives have defended attacks on “The Squad” as they argue those who criticize the United States are “un-American” and unpatriotic. Trump’s racism towards these Congresswomen is pointed directly at the idea of birthright citizenship, and citizenship more generally. Even if he doesn’t say anything about the status, the attack on U.S. born and naturalized citizens is undoubtedly a manifestation of the racist idea that “citizen” means “white.” Furthermore, the refusal, by anyone, to condemn these attacks as racist simply feeds into the dismantling of birthright citizenship.
Birthright citizenship is supposed to be an anti-racist status. Established after a civil war, fought over slavery, birthright citizenship was meant to keep the shackles of enslavement off. Even as that promise was not upheld, it nonetheless gave Black Americans and scores of other marginalized people room to breathe, and assert their place within this country. Now, conservatives wish to pull the rug out from under the Constitution, and craft this nation into the image of a white republic they wish existed.
Birthright citizenship is not where this stops. One of the most common places totalitarian regimes begin their assaults on society is by defining who can and can’t legally be a member of said society. It quickly spreads from there. Constitutions and laws bind the government, even as they empower them. Totalitarian regimes have no interest in being bound by the law, even the “supreme law of the land.” They are only interested in power. If the very status Americans are born with can be thrown aside in the name of racism and political power, then our entire government canbeas well.