A Line-by-Line Breakdown of Trump’s Birthright Citizenship Executive Order
Almost every sentence of the order is wrong, misleading, or flagrantly unconstitutional.
Like a clogged sewer erupting into the streets, Donald Trump returned to office on Monday, and, as promised, unleashed his filth upon the country. In a flurry of lawless, unconstitutional, racist, bigoted, violent, and, in some cases, plainly stupid executive orders and pardons, Trump set his reign of terror in motion. The future we feared has officially arrived.
Trump’s activity is, as always, designed to keep people distracted, defensive, and demoralized. He did so much stuff in the opening hours of his junta that the media can’t process it all, and Americans can’t keep up. It will take the courts literal years to process the lawsuits against his administration based on just its first half day, and we already know that the media is a Dr. Moreau monstrosity that has the attention span of mosquitoes, the memory of goldfish, and the courage of chickens.
I cannot tell you the worst thing Trump did in his first hours—“the worst” is a subjective assessment largely based on how close you are to the people Trump would like to harm. There is, however, one executive order that attempts to nullify an entire constitutional amendment by fiat, so that is the one I have decided to focus on.
“Protecting the Meaning and Value of American Citizenship”—better known as the birthright citizenship executive order—attempts to cancel the 14th Amendment to the US Constitution. Getting rid of constitutional amendments via executive order is new, and, for me at least, “the worst.”
Nearly every line of this order is wrong, misleading, or flagrantly unconstitutional. To appreciate the depths of racism and lawlessness embedded within it, you need to read every line. Lawyers have done that, and a lawsuit has already been filed attempting to stop the order. But I believe every single person in this country who is not a mouth-breathing racist deserves to understand just how despicable this thing is. I want you to be able to fight the racists in your family, chapter and verse, on this unmitigated piece of trash.
So allow me to present the order to you with my annotated commentary, sentence by sentence, section by section. Let’s start with the title:
“Protecting the Meaning and Value of American Citizenship”
Make no mistake: This title is a nod to the “Great Replacement” theory. The implication here is that the “meaning” of what it is to be “American” is devalued if that meaning is commingled with certain kinds of immigrant blood. To “protect” the value of being an American (for white people), non-white people who were merely born here must be excluded.
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“Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift.”
This is simply wrong. Citizenship is a privilege, but it is not a “gift.” It’s not bestowed by individual benevolent white folks when they happen to be in a good mood. Birthright citizenship is a right, one that has been enshrined in the organizing document of our country.
There is a legal process for taking away rights, but that process has nothing to do with the bigoted orders of an aging despot. Taking away the right to birthright citizenship requires nothing less than a constitutional amendment. Trump wants you to forget that by pretending that citizenship is a gift.
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“The Fourteenth Amendment 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.’ That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.”
Both the Dred Scott Decision and the 14th Amendment were trying to fix a fundamental flaw in the original US Constitution: The founders, in their racist wisdom, did not define “American” citizenship. At the founding, there was no such thing as a “US” citizen; instead, citizenship flowed up from the states. You were a citizen of New York or Virginia or wherever, based on the citizenship laws of that state. That meant that the circumstances of your birth could confer citizenship to you in one state, but not another.
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“swipe left below to view more authors”Swipe →Obviously, that meant the legal status of enslaved Africans varied by state. In some states, “free” Black people were citizens, while enslaved Black people were not. In some states, enslaved Black people became citizens when they moved to free states. In some states, citizen Black people became slaves when they crossed borders. In Dred Scott, the Supreme Court resolved the issue by declaring Black people everywhere, in every state, “not citizens.” That decision was so bad we fought a war over it.
After that war, the victors wrote the 14th Amendment which not only granted citizenship to the formerly enslaved Africans but it also created this new concept, a citizen of the United States. That person enjoyed rights and privileges regardless of state lines.
Now, as Trump and his Republicans try to undo birthright citizenship, you can understand what they’re really trying to do: they’re trying to go back to the pre–Dred Scott days, and make citizenship subject to the prevailing political predilections of the era. And remember that tying citizenships to politics can lead to open war.
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“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
This is a lie. It has, literally, repeatedly been interpreted to confer citizenship universally to people born within the United States.
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“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’ Consistent with this understanding, the Congress has further specified through legislation that ‘a person born in the United States, and subject to the jurisdiction thereof’ is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.”
Trump is throwing around the phrase “subject to the jurisdiction thereof” because it’s a piece of legal jargon that most people don’t understand. He’s trying to suggest ambiguity where there is none.
To explain: There was one group of people clearly born in the United States who did not get citizenship with the ratification of the 14th Amendment in 1868: Native Americans. The white people who wrote the 14th Amendment were interested in giving citizenship to the humans they stole and brought here and forced to work for free; they were not interested in giving citizenship to people whose lands they hadn’t yet stolen, or people living on reservations which were not officially “subject to” the laws of United States (except the ones preventing them from getting their land back). The “subject to the jurisdiction thereof” language is there so that white (former) enslavers could continue their westward colonization and subjugation, because the Indigenous people who were about to get ethnically cleansed by our suddenly well-armed and well-trained post–Civil War armies were not going to be US citizens. Native Americans didn’t get full citizenship rights until 1924, with the passage of the Indian Citizenship Act.
Moreover, everybody who lives here is “subject to the jurisdiction” of the United States, regardless of their legal status in the country. If you don’t believe me, just try to be a person who is out of status and breaks one of our laws, and watch how quickly the “jurisdiction” of the US crawls up your ass. Claiming you are not subject to the laws of the United States while in the United States is a good way to end up in a United States prison.
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“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of 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,”
This is where Trump tries to straight-up change the Constitution without passing a constitutional amendment.
If you take the long view of human history, there are basically two ways to do automatic citizenship: birthright citizenship or citizenship by descent. Birthright citizenship (sometimes called “jus soli” by scholars, which means “rule of the land”) is how we do it in the New World: You are a citizen where you are born. Citizenship by descent (sometimes called “jus sanguinis” or “rule of the blood”) means your citizenship depends on where your parents were born. It’s mostly prevalent in the Old World.
Here’s a map that illustrates the Old/New World divide on this issue; it’s so stark that you’d think that people on opposite sides of the Atlantic never spoke to each other.
Why does the world look this way? Well, colonization and diasporas. As whites from the Old World set about raping and pillaging vast swaths of the world, it was pretty important to the colonizers that their spawn were citizens of their parents’ home country, regardless of what nation they were busy subjugating at the time they were born. Meanwhile, for the Old World countries that were colonized by whites, it was important to call their dispersed communities “citizens” of their home countries, no matter where they happened to be when their homelands broke the yoke of white oppression.
The New World does it differently because… the large majority of us are the descendants of colonizers, immigrants, or slaves. Sometimes all three. It doesn’t make sense to tie New World citizenship to blood because most of us ain’t from here by blood if you go back far enough. The whole point of New World citizenship is that it doesn’t depend on where your parents are from; it’s based on where you are from.
But Trump and his white supremacists are obsessed with blood. Trump’s executive order tried to smuggle in a right based on blood, and that is simply a concept that does not exist in the Constitution. In this country, the only things your parents can pass on to you are money, unearned privilege, and knowledge—or (as the case may be) ignorance. Rights are not passed down by blood—except in this unconstitutional executive order.
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(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.
This is the Kamala Harris provision. You see, Trump shouldn’t have been allowed to run for president because he violated Section 3 of the 14th Amendment when he rose up in rebellion against the government he had previously sworn an oath to defend. But the Supreme Court decided to ignore the 14th Amendment for the purposes of seeing a white man get what he wanted. Here, Trump is saying that Harris shouldn’t have been able to run for president, because the very specific situation this section describes is the situation of Harris’s birth: She was born in the US to two parents who were here legally, but with temporary status.
The pettiness toward his former political rival is probably what got Trump on board, but for the broader collection of white Republicans and capitalists who support him, this provision is critical. That’s because even Republicans understand that we need immigrants in this country, not only to perform low-skilled work at exploitative wages, but also to perform highly skilled work should America still want to be a thought and innovation leader. We need immigrants for their labor and their intellectual capacity.
But once these people have contributed to America’s wealth, the white people running the joint would still like the option to throw them away. By preventing immigrants on temporary work or student visas from having American-citizen children, the Trump administration is essentially relegating them to permanent second-class status. It’s the “you can come here and enrich us, but you can’t be us” version of white supremacy. Unless, that is, they eventually choose to give the “gift” of citizenship to immigrants.
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“Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s 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 was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
This is the operations clause. It attempts to prevent state agencies, like the Bureau of Vital Statistics, from issuing birth certificates to the newborn children of these immigrant parents. It prevents the Social Security Administration from issuing Social Security numbers and cards. It essentially tries to make the children of immigrants legally disappear, dropping them into a limbo where their status and very existence can be forever questioned by authorities. If the executive order is allowed to take effect, we might truly never know how many people it affects, because the order interferes with basic recordkeeping.
Critically, this section also says that documents provided by some agencies in some states should not be accepted by other agencies in other states. This, my friends, is exactly what Dred Scott was all about. Trump is trying to create a class of people who may be recognized as citizens in, say, California, with all the rights and privileges thereof, but who then lose those rights when they travel to Texas. It would then allow Texas to deport those people who became noncitizens only when they crossed state lines, not unlike the way Dred Scott allegedly became a slave again the moment he went back to Missouri from Illinois.
Again, we have literally tried doing things this way before, and it led to war.
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“(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.”
The executive order is not retroactive. It only applies going forward to new babies born in the United States.
It might be tempting to take some comfort in this, but… don’t. We all know that this executive order is just a prelude for Trump’s mass deportation policies. People whom the Trump administration will try to send away will argue that they can’t be separated from their American-born citizen children. The administration will say that these children are not “real” citizens, even though technically this order isn’t supposed to apply retroactively. The 30-day thing will not matter, as Trump’s newly pardoned brownshirt forces are forcibly deporting people from the country without due process.
But the courts will pretend it does. The second problem with this alleged 30-day waiting period is that courts, including the Supreme Court, might pretend that it is true, and thus deny standing to anybody who is trying to sue to stop the order until there is an American-born plaintiff who is directly “harmed” by it. This means we’re at least one month before a plaintiff directly harmed by this is born, or 10 months before a plaintiff conceived after this rule is born. Trump’s court might refuse to recognize a plaintiff with standing to sue over this case until the little noncitizen baby can say the word “lawyer,” and that is more than enough time for this facially unconstitutional order to do immense harm, even if the courts belatedly get around to ruling it unconstitutional.
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“(c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.”
If the “except for Elon Musk” part of this order weren’t obvious before, it should be now. Musk’s future kids can still get citizenship, Trump wants to make that very clear, for some reason.
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“Sec. 3. Enforcement. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security shall take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order.”
If Trump had appointed actual American patriots to any of these positions, it’s likely they simply wouldn’t follow an unconstitutional order. Instead, he’s picked sycophants with no independence or backbone for all of these positions, so they’ll do what he tells them. Later, they’ll say they were “just following orders,” like so many Nazi apparatchiks before them.
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“(b) The heads of all executive departments and agencies shall issue public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities.”
The “guidance” issued could make the whole monstrous order even worse. I’ll have to wait and see what the agency heads say, because I am not creative enough to anticipate how one might go about providing guidance on how to implement an unconstitutional rule.
That’s it for the law part of the executive order. The rest consists of definitions of terms and general provisions, nothing mission-critical.
On its face, this order violates the 14th Amendment, the statutes that mirror the 14th Amendment, the Administrative Procedures Act (which prohibits “arbitrary and capricious” laws and orders such as “don’t give birth while on a student visa or else”). I’d also argue that it could violate the Equal Protection Clause, because it focuses more on the status of the mother than on the father. And it could violate the Full Faith and Credit clause of the Constitution if we’re in a situation where citizenship granted in a blue state is not recognized by red states.
But I wonder when the courts will get to a discussion of these issues on the merits. Because the government and Trump judges will likely begin by arguing that nobody even has standing to sue the administration over this constitutional violation. They’ll say that an immigrant who is not pregnant has no right to sue, nor does the out-of-status person who is expecting. They’ll say that states don’t have a right to sue, because they’re not “harmed” by the order. They’ll wait until an actual baby is born, and denied documentation, and then force that literal baby to sue.
In the meantime, the courts could allow a patently unconstitutional order to go into effect and watch as the white-wing media desperately tries to normalize it. They could watch as Trump’s goons attempt to “enforce” the order as he puts families and their American-citizen children on trains and sends them to camps, waiting for just the “right” plaintiff to emerge.
Even if the courts do get around to “stopping” the order, Trump controls the military. He controls the state department and the justice department. He controls the Social Security Administration. I don’t have a lot of belief that he will follow a court order on this, even if the courts order him to stop.
All I can do is tell you that the order is unconstitutional, and racist, and obviously so. The people who support this order are wrong, and racist. The journalists who promote and normalize the order are wrong and racist. This order violates one of the fundamental principles of the United States, and people should react to it like it does.
Unfortunately, the order upholds another, perhaps even more fundamental principle that has always animated the American experiment: the idea that this country is for white people, and nobody else. The people who believe that, and have always believed that, are the people who hope this order succeeds.
As I keep saying, we’ve tried to do citizenship Trump’s way before. It led to war. It could again, if Trump is allowed to get away with it.