With a pair of executive orders on Thursday, Donald Trump has tried – once again – to undermine the guarantee of birthright citizenship, a right enshrined in the US constitution and reaffirmed by the supreme court just five weeks ago.
The orders attempt to broaden the categories of children who would be ineligible for automatic US citizenship and ban so-called “birth tourism”, which the president claimed is practiced by “hundreds of thousands” of people.
That estimate appears to be wildly inflated. According to the nonpartisan Migration Policy Institute, the highest census-based estimate “puts birth tourism at ۲۲,۰۰۰ to ۲۶,۰۰۰ babies born annually on US soil, although government data show just ۹,۶۰۰ births to mothers with foreign addresses in ۲۰۲۴”.
It was the latest attack in a quixotic campaign that the US president has waged for more than a decade.
At a Republican presidential primary campaign event in Orlando, Florida in November ۲۰۱۵, Trump hinted that he had a plan to end what he called the scourge of “anchor babies”, a derogatory term for the US-citizen children of undocumented immigrants.
“You can’t come into the country – you’re illegal, you come down, you sit down, you have your baby, and we take care of the baby for the next ۸۵ years!” Trump said. “Everybody says, ‘Well, you need a constitutional amendment, it’ll take ۱۵ years, it’ll never happen’. You don’t, you don’t. You need a simple act of Congress. You might not even need that.”
If elected, Trump promised the crowd at a resort near Disney World, “the anchor baby, birthright citizenship, it’s over.”
Three years later, as president, Trump said in a televised interview just before the ۲۰۱۸ midterms that he planned to issue an executive order to instruct federal agencies that children born in the United States to non-citizens were not entitled to US citizenship at birth.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told the interviewer Jonathan Swan. “You can definitely do it with an act of Congress,” Trump added, incorrectly, “but now they’re saying I can do it just with an executive order.”
As Swan reported at the time, Trump’s claim that he could undo the birthright citizenship guaranteed by the ۱۴th amendment to the constitution was a minority view among legal scholars, but was supported by a then-obscure figure: John Eastman, a former law clerk to supreme court justice Clarence Thomas who had argued for decades that the amendment granting citizenship to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” should be read to exclude the children of people who are not US citizens when their child is born.
Eastman later claimed in a ۲۰۲۰ Newsweek op-ed that Kamala Harris was ineligible for the vice-presidency because she had no right to US citizenship at birth, since she was born in Oakland, California in ۱۹۶۴ to non-citizen parents who were, “subject to the jurisdiction” of their native lands of India and Jamaica.
In the ۲۰۱۸ interview, Trump called birthright citizenship “ridiculous”, and falsely asserted that the US is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.” In fact, ۳۲ other nations grant citizenship this way. He also claimed then that an executive order was in the process of being drafted.
Although that order did not materialize until the start of Trump’s second term, and was struck down in June by the supreme court, his obsession with casting doubt on the citizenship of children born in the US to foreign parents has had an overtly political element from the start.
After all, Trump’s original rise to political prominence was tied to his false claim that Barack Obama, born to an American mother and a Kenyan father in Honolulu, just two years after Hawaii became a state, might have been born outside the US.
Then, after Joe Biden picked Harris as his running mate in ۲۰۲۰, Trump repeatedly refused to confirm that she was eligible for an elected office open only to “a natural-born citizen.”
Instead, Trump called the question Eastman raised about Harris’s citizenship at birth in his Newsweek op-ed “very serious” and a potential “problem” for her. He also praised Eastman as “a very highly qualified, very talented lawyer” and called him “brilliant”.
Eastman, who went on to devise the fake electors scheme designed to keep Trump in office after he lost the ۲۰۲۰ election, and gave an inflammatory speech before the Capitol riot on January ۶ ۲۰۲۱, was finally disbarred by the California supreme court in April, based on “clear and convincing evidence that he advanced false claims about the ۲۰۲۰ presidential election to mislead courts, public officials, and the American public.”
While asserting the right to deny citizenship to some children of non-citizens is clearly still a priority for Trump, it remains to be seen if his latest attempts to curtail the right will succeed. The two new orders are likely to face legal challenges, and come just weeks after the US supreme court struck down Trump’s previous order denying citizenship to the children of non-citizens, issued on the first day of his second term.
In the court’s June decision, chief justice John Roberts said Trump’s first order violated the ۱۴th amendment of the US constitution.
“Citizenship, then and now, was the right to have rights – to freely participate in our political community,” he wrote. “The framers of the ۱۴th amendment extended that promise to ‘every free-born person in this land’. We keep that promise today.”
