Trump Just Released His Plan to Revoke Birthright Citizenship. It's Worse Than Imagined.
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Ever since Donald Trump vowed to end birthright citizenship for the children of many immigrants, one question has loomed: How could the executive branch possibly implement such a sweeping rollback of constitutional rights? The United States has granted birthright citizenship to virtually all children born on its soil since 1868, when the 14th Amendment enshrined that guarantee into law. What would it look like for the government to abruptly change course, adopting a radically different system of citizenship through presidential decree? How could the Trump administration identify the roughly 150,000 babies born each year who would no longer receive their fundamental right of citizenship? What penalty would it impose on these infants, some of whom would be rendered literally stateless ?
For months, federal courts blocked the Trump administration from developing any such plans, finding the executive order unconstitutional from top to bottom. In June, however, the Supreme Court expressly permitted the government to begin “developing and issuing public guidance about the executive's plans to implement” Trump's order. Acting on that decision, an immigration agency released the first stage of its “implementation plan” last Friday. It shocks the conscience. In dry bureaucratic language, the memo outlines a plan to revoke citizenship from the children of both immigrants who lack permanent legal status and many lawful residents, including visa holders, Dreamers, and asylum-seekers. It envisions intrusive federal review of parents' papers—quite possibly in the hospital, before or shortly after birth—to gauge the newborn's legal status. And it pave the way for people who spend their entire lives in the United States to be deported to countries in which they've never stepped foot, or to be condemned to the limbo of statelessness. To this administration, inflicting these unconstitutional harms isn't a mere byproduct of the plan. It's the whole point.
Friday's memo was released by US Citizenship and Immigration Services, or USCIS, part of the Department of Homeland Security. It was spearheaded by the agency's Office of the Chief Counsel, which is currently led by an apparatchik named John Miles. In its plan, USCIS acknowledged that a federal judge's injunction—separate from the case that was litigated at the Supreme Court and which the Trump administration won last month —currently bars the government from taking away anyone's birthright citizenship. But the agency “is preparing to implement the EO in the event that it is permitted to go into effect,” and laid out “guidance to address legal questions” so it can spring into action as soon as the courts allow it.
To that end, USCIS declared flatly that the children of immigrants who are “unlawfully present” will “no longer be US citizens at birth.” They will, instead, inherit the status of their parents, rendering them detainable and deportable as infants and throughout their lives. There is no indication that the government will provide some grace period before snatching up and imprisoning this new underclass of noncitizen babies; they are apparently subject to arrest from the moment of birth.
The Trump administration has already facilitated such neonatal arrests by repealing a 2011 rule that prohibited ICE enforcement in and around hospitals. Combined with this new guidance—plus a vast expansion of its budget—Immigration and Customs Enforcement could send agents to request proof of legal status from postpartum mothers and fathers. If they failed to produce the necessary documents, ICE could arrest the entire family, including the baby, whom agents could attempt to separate from her parents. (The Trump administration has quietly reintroduced a new form of family separation policies and rolled back protections for minors.) An American-born child with previously guaranteed citizenship under the 14th Amendment would be treated no differently than a noncitizen apprehended at the border.
The next section of the memo explains how the administration plans to deny citizenship to children born in the United States to parents who have “lawful but temporary” presence here. Trump's order itself clarifies that kids whose parents have “a student, work, or tourist visa” would no longer be eligible for citizenship. But USCIS went much further, laying out a dozen other categories of immigrants whose offspring would be ensnared by the policy—even though their parents reside in the country legally. Its list includes immigrants who have received “withholding of removal” under the Convention Against Torture, immigrants granted Temporary Protected Status, and Dreamers protected by DACA. The agency left no stone unturned: It even declared that children of Micronesian parents fall under the order, even though Micronesians have every right to live and work in the US under a 1986 treaty. (That treaty constituted a small reparation after the US tested atomic weapons on Micronesia for more than a decade.)
How will the federal government know whether a baby's parents have “lawful but temporary” status, rendering the child ineligible for citizenship? USCIS does not say, but there is only one possibility: The government will begin to demand to see every parent's legal status before recognizing their child as a US citizen. Only babies with at least one parent who is a citizen or green-card holder will be recognized as American. All others will be excluded at birth.
Curiously, USCIS proposed a compromise for children of parents with “lawful but temporary” status: These kids, the memo says, could inherit the legal status of a parent, and the agency “would propose to defer immigration enforcement against such children” until the details are ironed out. But no federal law allows the government to create a new legal regime in which, say, a work visa is automatically passed down to a newborn. That, of course, is because children born to immigrants have received birthright citizenship for 157 years. The Trump administration cannot conceal the damage of its constitutional betrayal by twisting other federal statutes to fill the gap.
The regime outlined in Friday's memo is not just legally and morally abhorrent—it is a logistical nightmare that would, in practice, require grotesque federal intrusion into the privacy of birth. One benefit of birthright citizenship is its egalitarian simplicity: The only thing most people need to prove that they're American is a birth certificate. Those lucky enough to be born here receive equality under the law from their very first breath. Trump seeks to replace that system with a caste-based vision of national identity in which every parent must provide documentation to secure their children's fundamental rights. This system would put ICE agents in maternity wards and babies on deportation flights. It would also trip up millions of American citizens who lack the papers to prove that they belong here. Try as it might, the government cannot cover up these horrors with bureaucratic legalese.
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