Trump’s Call to Repeal Birthright Citizenship: A Failed Argument About a Fundamental American Value

The 14th Amendment is not just another policy, it is a fundamental rejection of the notion that America is a country club led by elites who get to pick and choose who can become members

Marshall Fitz
4 min readNov 5, 2018

Sensing control of the House slipping away — and a likely reckoning with subpoenas around the corner — President Trump has transformed the midterms into a referendum on his nativist agenda. He has deployed a litany of racially charged, anti-immigrant tropes to frighten us, and proffered an array of illegal policies to divide us. The capstone to his xenophobic blitzkrieg was a declaration of intent to overturn the 14th Amendment’s citizenship guarantee by executive fiat.

The 14th Amendment was ratified in 1868 after the deadliest war in our nation’s history. The bloody purgation of slavery required constitutional enshrinement in the 13th Amendment, which formally abolished “the cruel institution.” But it also required constitutional reinforcement of America’s stated, albeit unrealized, founding principle — that “all men are created equal.” Now, almost 150 years later, the president suggests he can rewrite the Constitution and deeply established Supreme Court precedent by reinterpreting the 14th Amendment’s citizenship clause.

Trump’s jaw-dropping claim that he possesses what amounts to supra-constitutional authority finds virtually no support among legal scholars. A small fringe has argued that Congress could legislate around the 14th Amendment’s guarantee that “all persons born … in the United States … are citizens.” But almost no expert (or politician) contends the president could wreak such a constitutional upheaval with a stroke of his pen.

Setting aside the manifestly obvious lack of legal authority, the question should be why a Republican president wants to revive the long moribund policies that his party’s most revered leader (Lincoln) fought so hard to eradicate. Why would he want to recreate a legally sanctioned vulnerable and exploited underclass in this country? Trump and allies like Senator Lindsay Graham (R-SC) crudely contend that undocumented immigrants come to the U.S. to “drop kids” in order to get citizenship. In order to deter this fictitious incentive, they contend we need to upend a foundational constitutional pillar.

But repealing such a constitutional protection would do nothing to curb unauthorized immigration. Women come to the U.S. to work for a better life. Do they get pregnant and give birth? Of course, thankfully, life happens. But the notion that these hard, life-altering decisions to migrate are driven by citizenship considerations is absurd and unsupported by any evidence.

Relatedly, the idea that this change would be a silver bullet to deter unauthorized migration is belied by the bureaucratic nightmare it would entail to implement. Removing citizenship upon birth would mean that every single person (immigrant and native-born alike) who has a child in the United States will have to produce documentation to prove their own legal status, a significant burden for many people who already have trouble establishing their citizenship due to an inability to produce passports, naturalization papers, birth certificates and the like.

And making such a system work would require a new and cumbersome bureaucracy, bringing the Department of Homeland Security into every delivery room across the country. We would suddenly need a new federalized birth registry in order to ensure that citizenship status is allocated properly, something that is currently in the hands of states and localities. To put things in perspective: Roughly 4 million children are born in the U.S. every year, each of which would encounter vast bureaucratic red tape. Instead of reducing unauthorized immigration, such a change could actually increase the numbers of people stuck in limbo, without legal status or nationality, as parents struggle to register their children for citizenship.

Of course, at the end of the day, these concerns of burden and bureaucracy, however substantial, amount to policy considerations. But the 14th Amendment is not just another policy, it is a fundamental rejection of the notion that America is a country club led by elites who get to pick and choose who can become members. So blinded by anti-immigrant extremism and so committed to the preservation of power, the president and his allies would apparently turn back time to the darkest, most divided period in American history. Instead of trying to kick people out of their club, they should come to their senses and realize that we are stronger because of our commitment to, and embrace of, pluralism and diversity.

For xenophobes, reversing the 14th Amendment’s guarantee is the holy grail, the one structural change that could help forestall the demographic wave breaking across America. But that change is pure fantasy. Stripped bare, this is just the latest in a series of craven moves to sow fear and division while clinging to power.

--

--

Marshall Fitz

Managing Director of Immigration at the Emerson Collective. Advocate for humanity, sports junky, 1/2-assed Buddhist, proud papa and spouse. Views obv my own.