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.
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A brilliant take down of Trump’s wish to disenfranchise future voters.
As usual, Professor Ngai gets the bigger (subtler) truth lurking behind the bombastic rhetoric.
I think the authors of the executive order ending birthright citizenship, deliberately or not, misinterpreted the phrase “and subject to the jurisdiction thereof”. Like what Professor Ngai said one example of such a person would be a diplomat not subject to the U.S laws. But I think it is meant for the case where the person is born in that part of the United States which is controlled by another country imposing its own jurisdiction. This scenario may be unimaginable today but it was possible in the early days of the United States where some of its territories were occupied by a foreign country. A person born in such a place will not automatically be a US citizen. My 2 cents.
Rafiul Ahad is in error. The language in question is not from “the early days of America,” but is from the post Civil War 14th Amendment. No part of America was at that time “occupied by a foreign country.” (Nor, indeed, was any State of the United States “occupied by a foreign country” even in “the early days of the United States,” although this is irrelevant to the issue at hand.)
Professor Ngai makes a valid point from the perspective of political history, and politics undeniably plays a role in Constitutional interpretation at the level of the Supreme Court, as evidenced by the political flight of fancy six members of that Court indulged in when creating from whole cloth an extra-Constitutional immunity for the holders of the Presidency. But as a strictly legal matter, the case for birthright citizenship ought to be unshakeable. The sole exception that derives from the language “subject to the jurisdiction thereof” is that of children born on US soil to foreign diplomats, and such diplomats are not “subject to the jurisdiction” of the US solely because the US adheres to an international convention mandating diplomatic immunity from such jurisdiction. The fanciful “alien invasion” theory relied upon by Mr. Trump’s supporters has no basis in law.
Bear in mind that legalities and virtually every essential premise of the Constitution / Bill of Rights are anathema to this pOTUS and his fellow – given half the chance, fascist cadre. As for either ethics / core Judeo-Christian principals and/or fundamental decency, there’s no mistaking the absence and/or perversions thereof that this administration represents. As for ‘science’, it too appears to get in the way of their dogmas.
Among those… inconveniences that this pOTUS and his cadre are either seeking to disregard and/or otherwise find objectionable are:
First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition
Fourth Amendment: Search and Seizure
Fifth Amendment: Grand Jury, Double Jeopardy, Self Incrimination, Due Process, Takings
Sixth Amendment: Right to Speedy Trial by Jury, Witnesses, Counsel
Eighth Amendment: Excessive Fines, Cruel and Unusual Punishment
12th Amendment: Election of President and Vice President
14th Amendment: Citizenship Rights, Equal Protection, Apportionment, Civil War Debt
20th Amendment: Presidential Term and Succession, Assembly of Congress
22nd Amendment: Two-Term Limit on Presidency
One simply can NOT understate the innumerable threats to the American democratic-republic and rule[s] of law that this administration, the cadre within its’ inner circle and sycophants represent.
To protect them and their children and descendants, the Congress passed the Civil Rights Act in 1866 and then the rule was added to the Constitution; nothing less/ other than a constitutional amendment can alter that fact – at least not ‘legally.’
As Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard University, recently stated: ‘The argument [to the effect that the birthright provision can summarily be altered] is either a crazy theory or dishonest interpretation of the Constitution. The Supreme Court explained what those words mean in the Wong Kim Ark case…” https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/#:~:text=To%20protect%20them%20and%20their,citizen%20of%20the%20United%20States.
‘Crazy’ and/or ‘dishonest.’ That’s pretty plain language.
The Wong Kim Ark case, officially titled “United States v. Wong Kim Ark,” was a landmark Supreme Court decision in 1898 that established the principle of birthright citizenship, ruling that a child born in the United States to Chinese immigrant parents automatically became a U.S. citizen under the Fourteenth Amendment’s Citizenship Clause, even if their parents were not eligible for citizenship themselves; essentially confirming that children born on U.S. soil are citizens regardless of their parents’ immigration status, except in specific circumstances like diplomatic roles for a foreign power.
Of course, what the current majority of the SCOTUS might rule – on virtually any topic, is well open to question. The propensities of this administration to rule / govern by decree [Executive Order] is indicative. That along with nearly 90% of Trump’s appellate judges, and his Supreme Court justices, being members of the Federalist Society should put the hairs on any observer’s neck up. The Federalist Society’s stated objectives are ‘stated objectives are “‘checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning.” Origionalist, apparently – in their views, being to promote a revisionist and fundamentally regressive turning back on the jurisprudential-clock to the pre-New Deal era. They have – consistently, stipulated that if it isn’t expressly provided for by/in the constitution, such isn’t ‘legal’; and anything not specifically provided for by/in the constitution is reserved to the states. Yet, as with the Birthright provision, when it’s inconvenient to their agenda, they choose simply to either ignore it and/or bypass such with the declaration of an alleged National Emergency. They would have us believe that any/all legislation provided by the Congress that doesn’t fall within the narrowest of confines, as above, are extra-legal and should be rescinded, or – at the very least, ignored.