For generations, the birth certificate has been the cornerstone of how Americans verify their citizenship. But that standard may soon be upended.
On Day 1 of his second term, President Trump signed an executive order attempting to rewrite the 14th Amendment of the U.S. Constitution and end birthright citizenship as we know it. The order said that children of immigrants would no longer receive U.S. citizenship unless one of their parents had already been naturalized or had a green card. This meant that the children of Dreamers and many other immigrants who have lived their whole lives in the United States would no longer be born citizens.
Within 24 hours, multiple lawsuits were filed to challenge the order. On Feb. 5, Judge Deborah L. Boardman of the U.S. District Court in Maryland issued a nationwide injunction stopping the federal government from putting this unconstitutional policy into effect. Since then, every court to consider this issue has ruled that Mr. Trump’s order should not go into effect.
There have been several news stories about the birthright citizenship case, and the Supreme Court will hear oral arguments in the case on Thursday. The majority of these stories have focused on technical legal questions: whether and under what circumstances lower courts should be able to issue nationwide temporary injunctions and stop a federal policy from going into effect nationwide while the case winds its way through the courts. But the focus on this legal question has obscured what is really at stake: the definition of U.S. citizenship and what it means to be an American.
If the Trump administration prevails in its crusade to overturn birthright citizenship, it will result in a population of newborns without legal status.
Since Reconstruction, any child born in the United States has been able to access citizenship, regardless of their parents nationality or race.
As more immigrants came to the United States, some argued that their children shouldn’t qualify for citizenship. In 1898 the Supreme Court rejected that view, ruling that children born to immigrants are protected under the 14th Amendment. And the matter was considered settled until now.
In this case, the government sidestepped the core issue of birthright citizenship, instead focusing its argument on the narrower question of whether judges should be able to issue nationwide injunctions. As a result, the case will not provide a final resolution on the main constitutional question. The issue of birthright citizenship could again make its way to the Court as early as next year, challenging the executive order on constitutional and statutory grounds. At that point, the court could declare the basis of it unconstitutional.
Still, if the government prevails in this case, Mr. Trump’s unilateral reinterpretation of the Constitution will, for now, be implemented in 28 states, and that suspension of birthright citizenship, even if it only lasts a few months, will have profound consequences.
Although the plaintiffs in this case will remain protected by the injunction, all families will still be required to prove that their children have a legal right to live in the United States — a process that could prove both costly and stressful. Even U.S. citizens would have to provide identification to confirm their children’s citizenship, or even prove their own legal status, as a birth certificate alone would no longer be sufficient.
Babies denied U.S. citizenship could be denied other forms of identification, making it difficult or impossible to receive essential vaccines or obtain a social security number. Health insurers could refuse coverage for these stateless babies, meaning a premature infant in need of urgent care could be denied treatment. Hospitals could also be forced to assess the citizenship status of parents in delivery rooms, raising the risk of discrimination against those wrongly assumed to be immigrants.
Children who have no legal status could be vulnerable to deportation. This is an alarming proposition given that this administration is paying El Salvador millions of dollars to imprison men indefinitely with no due process.
It’s worth noting that this order will affect all types of immigrants, even those the government has no legal authority to deport. That includes people who have been granted temporary status, Dreamers and others who have been approved for immigration benefits but are stuck in immigration processing limbo. Immigrant parents with legal status may face the threat that their children could be deported. It is not hard to imagine a scenario where this administration pays another country to take in the growing number of stateless children — with or without their parents.
If the Supreme Court eventually hears a case on the merits of the executive order itself and finds it unconstitutional, then the federal government will have to create a process to ensure these potentially stateless children can access U.S. citizenship. If the Trump administration refuses, it could create an underclass of children who have limited rights. We don’t yet know what that will mean in the long term.
In the meantime, if the court allows this order to go into effect, even temporarily, the executive branch could be emboldened to go further in its attempts to undermine the constitutional rights that hold our imperfect democracy together.
Andrea R. Flores is a lawyer and the vice president for immigration policy and campaigns at FWD.us, a bipartisan political group that supports reforming immigration and criminal justice policies.
Source photograph by Alex LMX, via Getty Images.
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