King Donald the First, and Republicans generally, don’t like birthright citizenship.
So, with a sweep of his pen, the king did away with it just moments after his coronation (see story here). Except not really, because courts have final say on this.
The 14th Amendment says, “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.”
This is pretty straightforward, except for the “subject to jurisdiction” part, but even that qualifier isn’t very complicated because courts have been interpreting the 14th Amendment’s citizenship clause for over 140 years (read the history here).
The status quo was an 1898 Supreme Court ruling that everyone born in the U.S. is a citizen except children of foreigners having diplomatic immunity. In 2010, a Congressional Research Service report suggested that because Congress has power to regulate immigration, it also has power to define “subject to jurisdiction.”
Existing precedent is that the Supreme Court defined birthright citizenship, and an arm of Congress suggested maybe Congress can weigh in, too. Nothing, anywhere, gives the president any say in it.
That didn’t deter King Donald, who issued this executive order minutes after taking office on January 20, 2025. In it, he asserts power to decide who’s covered by birthright citizenship by “the authority vested in me as President by the Constitution and the laws of the United States of America,” which authority happens to be exactly zero.
In his order, he describes U.S. citizenship as a “privilege” (it’s not; it’s a fundamental right guaranteed by the Constitution), and expands the definition of persons born on U.S. soil but excluded from citizenship to include persons whose mothers were “unlawfully present in the United States” or whose presence was “lawful but temporary” (e.g., under a student, work, or tourist visa), where the father is not a U.S. citizen or lawful resident.
This is aimed at Mexican, Central American, and Venezuelan migrants. Trump probably doesn’t care if a Russian oligarch docks his yacht in New York harbor while waiting for his girlfriend to give birth, in order to make their child a U.S. citizen (see story here), as long as the kid is white and doesn’t have Mongol features.
Trump won’t be sued over this; he is being sued. The ACLU of New Hampshire filed a lawsuit (read it here) before the day was over. Trump had talked a lot about what he planned to do, so lawsuits were already prepared and were ready to be filed.
What now? I’d guess that Trump’s attorney general, when he gets one, will try to transfer the case from New Hampshire to some toady judge (I can think of specific examples) in Texas or Florida. But I don’t think that will work — it shouldn’t work — because the plaintiffs are in New Hampshire and have no connection to those states.
It might seem obvious the Supreme Court will deal with this, but I’m not so sure. Trump likely will be out of office by the time the case gets that far in the court system. His successor, if a Democrat, will simply rescind Trump’s executive order, or drop appeals if it’s been overturned by a lower court.
One thing does seem certain, though: Given Trump’s expansive view of presidential power, and propensity to overstep the bounds of law, together with a flurry of executive orders flying from under his pen (over 200 on his first day in office), there will be a great many lawsuits and the courts will be very busy indeed.
But what if Trump simply ignores court rulings? The Mother Jones article (first link above) says, “You cannot simply blot out the Constitution.” Well, yes you can, unless someone stops you. We like to think of the Constitution as the basic law of the land, but it’s more accurate to think of it as a social contract, and Republicans — led by Trump — and their mob of supporters appear to be quitting the social contract.
So, there will be lawsuits aplenty, to be sure; but the MAGA mob has been stockpiling guns and talking up civil war. Among his other first-day actions, Trump pardoned the January 6, 2021, insurrectionists who tried to violently overthrow our democratically elected government. He’s talked about a third term, which is constitutionally prohibited. There’s really little reason to believe that Trump, now that he’s back in power, will stay within the bounds of the Constitution or court rulings.
I’ll believe that when I see it.
Photo below: The Russian owner of this yacht paid dock fees of $2,000 a day for two months while waiting for his girlfriend to deliver their child in 2013.
