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This week’s episode of Amicus is a mailbag special in which Dahlia Lithwick and Mark Joseph Stern answer listeners’ burning questions about the law and its odds of surviving a second Trump administration. Amicus listeners have a lot of smart questions, so we’re starting a new occasional “Dear (Juris)Prudence” series where we share your questions, and Mark and Dahlia’s answers. Write to amicus@slate.com to pose a question to Dahlia and Mark. The following transcript has been edited and condensed for clarity.
Dear (Juris)Prudence,
Sure, the new administration cannot wave a magic wand and end birthright citizenship by executive order. And any attempts would require at least a little time until the majority in the Supreme Court decides it is time to overrule Wong Kim Ark (joking not joking). But … could they make it worthless, or very hard to actually invoke for children of immigrants? For example: To get a passport, you would need to provide not just evidence that you were born in the United States, but also evidence that your parents were either citizens or in the country legally when you were born. Could that be done by executive order, or just regulations?
—Arturo Magidin
Mark Joseph Stern: I think you’ve hit the nail on the head. What you describe is probably how Trump will try to end birthright citizenship. I think he will issue some kind of order that directs federal agencies that issue citizenship documents, like the Department of State, or the Department of Homeland Security, to deny that documentation to the children of unauthorized immigrants, and thereby attempt to deny them American citizenship altogether.
It will be litigated for sure, and as you say, the order will directly violate the Supreme Court’s decision in Wong Kim Ark, which established birthright citizenship under the 14th Amendment for the children of immigrants. I am bullish on the Supreme Court affirming that precedent and standing by birthright citizenship. I think it’s way too late in the day to unwind this guarantee.
I’ll also just note that part of the issue here is that it’s utterly impractical at this stage to try to switch citizenship in this country away from true birthright citizenship to something like bloodline citizenship, which is restricted based on parentage. One of the reasons is that most of us who were born in the United States have citizenship because we were born here. The government doesn’t go sniffing around into the citizenship status or immigration status of our parents when it recognizes that we’re citizens. It doesn’t launch an investigation to make sure that our parents’ visas were lawful, or what their citizenship status was at the time of our birth.
The government just recognizes we were born on the soil, and under the 14th Amendment that makes us Americans. That principle applies across the board—to me, to the children of lawful immigrants, to the children of unauthorized immigrants. And so I think it’s really, really hard to undo that without jeopardizing a whole lot of people’s citizenship status, which I don’t think this Supreme Court wants to do.
Maybe I’m being naive or optimistic, but I don’t think that Trump will prevail in this battle. He will fight it out till the end, of course, but this is one I think he should lose decisively.
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