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Mae M. Ngai

January 22nd, 2025

Trump’s executive order to curtail birthright citizenship is part of the long history of ‘alien citizenship’ in the US

5 comments | 30 shares

Estimated reading time: 5 minutes

Mae M. Ngai

January 22nd, 2025

Trump’s executive order to curtail birthright citizenship is part of the long history of ‘alien citizenship’ in the US

5 comments | 30 shares

Estimated reading time: 5 minutes

On the first day of his second administration, President Donald Trump issued a flurry of executive orders, including one to end birthright citizenship for those born in the US to unauthorized migrants and temporary visitors. Mae Ngai writes that the order is the latest part of America’s history of ‘alien citizenship’, where some Americans’ citizenship is deemed suspect or denied on the grounds of race. While Trump’s executive order faces significant legal challenges, America’s history of qualifying citizenship suggests that it may not be overturned.

Perhaps no other executive order signed by President Trump on Day One of his presidency has prompted more skepticism than the one eliminating territorial birthright citizenship for children born in the US to unauthorized migrants and temporary visitors. Birthright citizenship is a bedrock of American citizenship, enshrined in the Constitution under the Fourteenth Amendment. Legal scholars quickly opined that canceling it faces monumental hurdles: it would require the Supreme Court to overturn 150 years of precedent or a new Constitutional amendment. The ACLU and a bevy of immigrant rights groups wasted no time challenging it with a lawsuit.

The legal theories behind overturning birthright citizenship

Yes, overturning birthright citizenship by executive order is an audacious and unconstitutional move. But I am not so sanguine that the obstacles to it can’t be overcome.

Since at least the 1990s conservatives have introduced myriad bills into Congress limiting citizenship to children of citizens and legal residents. Michele Waslin of the National Council of La Raza noted when a similar bill was introduced in 2005, “This was always seen in the past as some extreme, wacko proposal that never goes anywhere… But these so-called wacko proposals are becoming more and more mainstream.” That was in 2005.

Speaking of wackos, the chief legal theorist for restricting birthright citizenship is John C. Eastman. He is the law professor who, along with former Trump lawyers, Sydney Powell and Rudy Guiliani, provided Trump with novel (and wacko) legal strategies for overturning the 2020 election. Eastman’s contribution was the idea that Vice President Mike Pence could refuse to certify the electoral vote and throw the matter to the Congress. Pence demurred, of course. For his prominent role in attempting to overturn the 2020 election, Eastman was fired from Chapman University Law School and suspended from practicing law in the state of California. He was also a named co-conspirator in the case brought against Trump’s attempted coup in the state of Georgia (and is an unnamed co-conspirator in the Jack Smith indictment against Trump over his alleged efforts to retain power following the 2020 election).

Eastman has been advocating for denying birthright citizenship to the children of undocumented migrants for at least twenty years. His reasoning underpins Trump’s executive order. The strategy is not to overturn the Fourteenth Amendment or pass a new constitutional amendment (both legally difficult), but to “reinterpret” the meaning of one phrase in the first sentence of the Fourteenth Amendment. Passed after the Civil War to overturn Dred Scott (1856), which excluded all Black Americans from citizenship, it states: “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.”

It has long been a settled matter that only foreign diplomats are exempt from the government’s “jurisdiction” (also known as diplomatic immunity). (The exception also applied to Native Americans with tribal sovereignty, or “Indians not taxed;” but this changed with the imposition of US citizenship on all Native peoples in 1924.) Eastman would have us believe that unauthorized migrants do not fall within the United States’s jurisdiction because they were not invited or authorized to be in the country. Tell that to the undocumented person who gets a speeding ticket. Indeed, all people, regardless of their citizenship status, are subject to domestic law. Undocumented persons who are convicted of crimes and sentenced to prison must first serve their time, after which time they are deported.

We already know that Donald Trump has no respect for the Constitution or for any conventional norms that constrain the reach of his power. What Trump needs, and what he appears to have now accumulated, is the political wherewithal to accomplish his aims. Authoritarian rule requires the acquiescence of democratic institutions and mass popular support. We have come rather far down this path. Consider the political landscape today—the inclination of the Supreme Court, the fealty of the Republican Party, and the wide swath of anti-immigrant sentiment in the general population—and one can imagine that the necessary political alignments and political will exist to restrict birthright citizenship. The Supreme Court’s recent rulings on presidential immunity and its refusal to apply to Trump the ‘disqualification clause’ (section 3) of the Fourteenth Amendment, which prevents insurrectionists from holding office, should disabuse us of the idea that the Court is not a political body.

Alien citizenship and the historic exclusion of immigrants in America

The politics for curtailing birthright citizenship are part of a long history. I call this the history of alien citizenship. The alien citizen is an American citizen by virtue of their birth in the United States but whose citizenship is suspect, if not denied, usually on grounds of race. In this construction, the foreignness of non-European people is deemed unalterable, making nationality a kind of racial trait. Alienage, then, is a permanent condition, passed from generation to generation, adhering even to the native-born citizen. Qualifiers like “accidental” citizen, “presumed” citizen, and “terrorist” citizen” have been used to denigrate, compromise, or nullify the US citizenship of “unassimilable” Chinese, “enemy-race” Japanese, Mexican “illegal aliens,” and Muslim “terrorists.”

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More than a racial metaphor, alien citizenship has involved the nullification of the legal rights of citizenship, from the right to be territorially present to a range of civil rights and liberties, without actual formal revocation of citizenship status. The repatriation (territorial removal) of 400,000 ethnic Mexicans during the Great Depression, half of them US citizens, and the internment of 120,000 people of Japanese descent during World War II, two-thirds of them US citizens, are instances of official alien citizenship.

In both cases, alien citizenship derived directly from the legal exclusion of the citizens’ immigrant forebears from the accepted path of immigration and naturalization (i.e., legal entry to settlement to citizenship). The advent of a regime of immigration restriction in the 1920s created unauthorized entry as a mass phenomenon and legal problem, and Mexicans comprised the single largest group of undocumented migrants by the late 1920s. The real and imagined association of Mexicans with “illegal aliens,” along with the creation of a landless, migratory agricultural workforce and the extension of Jim Crow segregation to Mexicans in the southwest, stripped all ethnic Mexicans (regardless of legal status) of legitimate belonging.

Asian Americans were excluded from both immigration and naturalized citizenship on grounds of “racial unassimilability” from the late-nineteenth century to the mid-twentieth century. Asiatic exclusion was the most complete race-based legal exclusion from citizenship since Dred Scott and was instituted, significantly, in the 1880s, after the Fourteenth Amendment nullified Dred Scott. 

African Americans also have been constructed as “foreign,” as evident in early nineteenth century colonization movements to “return” free Blacks to Africa. But after passage of the Fourteenth Amendment, the birthright citizenship of African Americans became indisputable, even if demoted to second class citizenship. Opponents of citizenship for Chinese and other Asians often used Black citizenship as a negative example of the harm that conferring citizenship on unassimilated, ‘backward’ races brought to the institution.

Wong Kim Ark and the Fourteenth Amendment

Throughout the late nineteenth century there was avid political opposition to recognizing birthright citizenship for Chinese born on US soil. Anti-Chinese nativists understood that granting citizenship to the children of Chinese immigrants assured permanent settlement and population accretion, thereby undermining the very objectives of exclusion. The matter was not settled until 1898, when the Supreme Court ruled in Wong Kim Ark that the language of the Fourteenth Amendment was “plain” and upheld its declaratory force. In acknowledging birthright citizenship all persons born or naturalized in the US, the Court did not express any love for the Chinese who were, after all, a small population. It had broader aims: to support the authority of the federal government over all persons under its jurisdiction during this period of national consolidation and to support the immigration of Europeans at a time of industrial development. Denying access to territorial birthright citizenship to the children of aliens, the Court said, would jeopardize “citizenship [for] thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”

But, because birthright citizenship existed alongside racial exclusions from immigration and naturalization, there developed over the course of the twentieth century the “alien citizen.” Legal exclusions from admission and naturalization served as constant pressures against the realization of full citizenship rights of the native-born. Nevertheless, the right to territorial birthright citizenship has been, and remains, a marker of equality and inclusion.

Of course, “alien citizen” is inherently contradictory. Asian American and Latino citizens have always fought for the full rights of citizenship to purge the “alien” from “alien citizen.” From the other direction, Trump wants to resolve the contradiction by eliminating the “citizen” from “alien citizen.”

Restricting American birthright citizenship is now a real possibility

The Trump agenda is for the mass deportation of unauthorized migrants and the creation of a hereditary caste of servile and marginal non-voters among those remaining. Denying citizenship to children of unauthorized migrants addresses the long-held Republican obsession to erect a bulwark against the growing numbers of Latino and Asian Americans who are eligible to vote. (Indeed, nearly 70 percent of Asian Americans are citizens and 81 percent of all Latinos are citizens. Not all are of voting age—yet.) Just as important, putting anti-immigration at the top of the agenda sustains the energy of populist nativism, the most dynamic force of the MAGA base.

As Trump has noted, other western countries have limited territorial birthright citizenship. Between the early 1980s and early 2000s, Britain, Australia, Ireland, and New Zealand restricted birthright citizenship to children with at least one parent with citizenship or some variant of legal residency. In each case the changes responded to popular nativist sentiment against Black and Asian immigrants. In the US birthright citizenship has been harder to overthrow because it is protected by the Constitution and is an ingrained component of our national identity. Or one version of our national identity.

If restricting American birthright citizenship in the 1990s was a far-fetched and wacko proposal, I fear it is now a real possibility.


About the author

Mae M. Ngai

Mae M. Ngai is Lung Family Professor of Asian American Studies and Professor of History at Columbia University. She is a U.S. legal and political historian interested in the histories of immigration, citizenship, nationalism, and the Chinese diaspora. She is author of the award winning Impossible Subjects: Illegal Aliens and the Making of Modern America (2004); The Lucky Ones: One Family and the Extraordinary Invention of Chinese America (2010); and The Chinese Question: The Gold Rushes and Global Politics (2021); and coeditor of Corky Lee’s Asian America: Fifty Year of Photographic Justice (2024).

Posted In: Democracy and culture | Trump's second term

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