Birthright Citizenship: Supreme Court Could Create an Exploitable Noncitizen Class

On April 1, the Supreme Court will hear Trump v. Barbara, which will test the theory that the president, with the stroke of a pen, can strip millions of American-born children of the birthright citizenship the Constitution grants them. 

The birthright citizenship case is easily the most important case that will come before the Court this year. I’ll add: Barbara may be the most important case the Court hears in this century.  

It may be the most important case the Court has heard since the Civil War. 

I have devoted nearly a quarter-century to studying the issue Barbara posed. My journalistic writings on birthright citizenship are here, here, here, here, here, here, here, here, here, here, here, and here. My scholarly contribution is here. I had the honor of signing this amicus brief that points out the links between today’s anti-birthright citizenship campaign and the pre-Civil War “Know Nothing” movement’s attack on Catholics. I am to the Citizenship Clause as the Ancient Mariner was to the Albatross.  

To summarize the issue: The first sentence of Section 1 of the Fourteenth Amendment provides that “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.” Since the amendment’s adoption in 1868, these words have applied to those born in the U.S.—except for two classes: First, children born to the families of foreign diplomats, whose diplomatic immunity means they are not “subject to the jurisdiction” of the U.S.; and, second, children born to members of Native American nations living on reservations, who were, in 1868, not “subject to the jurisdiction” because, by treaty, they could not be arrested or sued in federal court. (This provision was undone by the Indian Citizenship Act of 1924.) The birthright of all other American-born children has been recognized by the Supreme Court for 125 years and by Congress since at least 1940.  

But in the gauzy world of 21st-century “originalism,” history matters less than one might think. I remember when the notion that the Citizenship Clause did not apply to some American-born children was a fringe theory espoused purely for its novelty and intellectual interest by two prominent academics; when conservatives admitted that birthright citizenship could only be changed by constitutional amendment; when they claimed that Congress could change it by statute; when, led by John Eastman, the architect of Trump’s stop-the-steal efforts to scuttle the 2020 election results and former Attorney General Ed Meese, they asked the Supreme Court to do the dirty work for them; when, stymied by the Court, they decided presidents could do it by executive order.  

And on the first day of Trump’s second term, the president attempted to do exactly that, issuing Executive Order 14060, stating that birthright citizenship would end on February 19, 2025. The administration now argues: “This Court should uphold the Citizenship Order and restore the Citizenship Clause’s original meaning.” That “original meaning” turns out to be, according to the executive order: 

United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth. 

A couple of points: First, for the federal government to institute policies denying citizenship to American-born children would be an administrative nightmare. Currently, a birth certificate is sufficient to establish a baby’s citizenship and obtain a Social Security number. However, if the new “original meaning” becomes law, parents would be required to provide citizenship documents for themselves—potentially risking detention, deportation, or losing their citizenship. Can you find your birth certificate now? Could your parents present theirs? 

Second, this language has nothing to do with the text or history of the Fourteenth Amendment. It is incoherent and targets supposed “birth tourism”—women who enter the U.S. legally with temporary visas to give birth to a citizen-child whose father is a partner or spouse in their home country. 

The number of such children is hotly contested. But that debate is a distraction: Even if there were doubts about the “original meaning” of the Citizenship Clause, the wording above cannot be that “original meaning.” No one—neither courts, commentators, nor legislators—ever proposed that meaning until January 20, 2025, when it sprang from whatever autopen wrote it for the president. There’s no reference to sex in the Citizenship Clause. Inserting one raises serious questions under the amendment’s Equal Protection Clause. 

What would our country look like if the Court blesses this new “original meaning”? I call on no less an authority than Deputy Chief of Staff for Policy and Homeland Security Advisor Stephen Miller, who explained the stakes in a January post on X: “Plenty of countries in history have experimented with importing a foreign labor class. The West is the first and only civilization to import a foreign labor class that is granted full political rights, including welfare & the right to vote. All visas are a bridge to citizenship.” 

Miller possesses few virtues, but one is a lack of shame. He will say the secret part out loud. The comment above implies an agenda that extends farther than Trump’s promise to mount “the largest deportation operation in the history of our country.”  

What does “importing a foreign labor class” mean exactly? Which “countries in history” have “experimented” with the import of labor? It’s right there on the tip of my tongue—it’s—it’s— 

It’s my birthplace, Virginia.  

Colonial Virginia needed labor to grow tobacco—the 17th-century planter’s road to riches. The foreign labor was African.  

The first Africans were brought to the colony in 1619. By 1640, Virginia law made African slavery lifelong and hereditary. In 1662, the colony proclaimed that the children of a Black mother, regardless of the father’s race, were slaves for life. This rule guaranteed generations of slaves whose unpaid labor allowed white planters to enrich themselves.  

The results were a quarter-millennium of human slavery, a Civil War, and, in reaction, a constitutional revolution to liberate America from the slave society the American South built. 

Slaves were Miller’s “foreign labor” class of its day—a class denied “full political rights, including welfare & the right to vote.” “Anti-slavery” southerners like James Monroe trumpeted a solution: Return the slaves to Africa. But that suggestion was never serious—because, if American Blacks were exiled, who would weed the tobacco and pick the cotton? The virtue of a “foreign labor class” is not that it goes away. It is that it stays and propagates. 

If American-born children are not U.S. citizens, where would we deport them? Children born in this country aren’t automatically citizens of some other country. They are likely to be stateless. Even if the U.S. wished to deport them, other countries would be unlikely to take them. And do Stephen Miller et. al. actually want to deport them? I suspect not. 

The evidence suggests that the Trump project has never been about deportation but about keeping noncitizens working for “real” Americans.  

Inmates in American prisons, even those whose citizenship is not in question, are put to involuntary labor. So, too, are immigrants who ICE has detained, even those not accused of a crime. As long as they are handy, a use can be found for them. 

In fact, the post-Reconstruction South found a solution to the abolition of slavery. As early as 1866, northern journalists touring the South found whites proposing a system that (as one Confederate veteran explained) would “enable the judicial authorities … to sell into bondage again those negroes who should be found guilty of certain crimes.” It took a generation or two, but once Black Americans had been stripped of citizenship and voting rights, it was easy to fabricate charges against them, sentence them to labor, and then “lease” them to work on plantations and in factories. Douglas Blackmon, a Pulitzer Prize-winning historian, called the convict labor system “slavery by another name.”  

As a practical matter, reinstating a hereditary, lifelong, inferior status—which, after all, is what removing “full political rights, including welfare & the right to vote” would mean—recreates the conditions for the growth of a racialized slave economy.  

Remember the weird language in the executive order about the distinction between non-citizen fathers and non-citizen mothers? Under the order, a child born in the U.S. is not recognized as a citizen if (1) the mother was unlawfully present and the father was not a U.S. citizen or green-card holder, or (2) the mother’s presence was lawful but temporary—such as on a student, work, tourist, or visa waiver admission—and the father was not a U.S. citizen or green-card holder. To begin with, this will strip citizenship from children of mothers who cannot verify the father’s identity or citizenship status, even if her presence in the U.S. is legal. This reverses current immigration law, which treats even a “foundling”—that is, a child neither of whose parents can be located—as a citizen if “found” in the U.S.  

Chillingly enough, it echoes Virginia’s 1662 statute, Negro women’s children to serve according to the condition of the mother. Like slavery, non-citizenship status follows the maternal line.  

Trump’s definition has not been adopted, yet we are already contemplating a disturbing interpretation of the origins and status of American-born babies that is both dystopian and a call back to an ugly past. Deciding a newborn’s entitlement to “full political rights, including welfare & the right to vote,” raises questions about whether said baby could, with representation, challenge Miller, or would they be compelled to serve her noncitizen life without legal redress.  

Such a status might not be called “chattel slavery; it would be hereditary legal inferiority.  

It would undo the Civil War. It would end America’s 175-year experiment with multiracial, multicultural democracy and fasten, shackle by shackle, a white ethnostate to the labor of a permanent subordinate class.  

The Supreme Court made this mistake in 1857, when in Dred Scott v. Sandford it held that Blacks born in the United States could never be citizens because the Framers had deemed them “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.” One consequence of the Court’s mistake was civil war. 

Today’s movement to strip citizenship from American babies reeks of that same disrespect for the Constitution, innocent American children, and the legal equality that is democracy’s pillar. And it befits the administration’s propensity for chaos. A world where you need ready access to your parents’ birth certificates and your own is as Trumpian as it gets. This crackpot notion is, in constitutional terms, as valid as the theory that the earth is hollow. That it is championed by an American president and under consideration by the Supreme Court is a devastating comment on our society.  

Every lower court that considered Trump’s birthright citizenship order held that it grossly violates the Constitution. But the Supreme Court shows scant respect for lower courts or its own precedents. That a nation of 340 million must now entrust citizenship to this deeply compromised Court is chilling.  

The post Birthright Citizenship: Supreme Court Could Create an Exploitable Noncitizen Class appeared first on Washington Monthly.