President Trump says he will be issuing an executive order ending the granting of birthright citizenship to United States-born children of immigrants. I, and nearly all legal scholars, believe this is unconstitutional because of the 14th Amendment and court decisions that say that such children are citizens by birth. You can read a history of birthright citizenship that I wrote two years ago.
However, in my worst nightmares, I keep seeing a Trump-appointed Supreme Court deciding that the president is right. I wanted to discuss what the implications of such a decision would be.
The first thing to understand is that if the Supreme Court adopted Trump’s position, every child born to undocumented parents since 1868 would lose their citizenship. Actually, that is the wrong way to say it. Because, according to Trump, they would have never been citizens to begin with.
Now, you might say, “Wait a minute, Pat, wouldn’t the Trump interpretation of the 14th Amendment only apply to people born after the Supreme Court makes a decision endorsing it?” Not necessarily. Remember, this change would not result from a new law being passed. This would be what Trump would call a correct interpretation of the 14th Amendment rendered in a Supreme Court decision. A “clarification” of the 14th Amendment, if you will. Hence, millions of people would be clarified out of their citizenship.
I’ll give you an example of how this might work.
Let’s assume that Justice Kavanuagh can convince four of his colleagues on the Supreme Court that Trump’s point of view is correct. And let us say you are a 55 year-old man born in the Bronx to parents who emigrated from Italy. Your father came in 1950 and your mother in 1948. When the Supreme Court decides in Trump’s favor, and the current interpretation of the 14th Amendment is overturned, you would have to prove that you were born in the United States and also prove that at the time of your birth, both of your parents were in the U.S. legally. Not such an easy thing to do when you recall that many immigration records from before the 1960s have been destroyed or misplaced. If you can’t demonstrate that your parents had legal status, your own citizenship, which you have taken for granted for half a century, would suddenly be in question.
Maybe you think that this is not really that big of a problem. Less than half the current population of the United States has an immigrant parent. So at least 150 million of us are safe, right?
Because if your own parents were the children of immigrants, you would have to perform the same analysis of their immigration status. So, let us say that your grandparents immigrated from Ireland in the late 1890s. If any of them had Irish citizenship or was an undocumented immigrant at the time your parents were born, then your own citizenship as a third generation American would retroactively be called into doubt.
Can you imagine trying to find records from the 1890s on your grandparents or great grandparents immigration statuses?
A Supreme Court decision finding in favor of the anti-immigrant view that the 14th Amendment has been misinterpreted for all these years would throw our entire country into turmoil.
Elections would be decided by those able to prove a proper pedigree dating back to the pilgrims, and those of us from more plebeian roots would be relegated to some sort of second-class non-citizenship or deportation, depending on the mood of the president.