The Insidious Plan Behind Eliminating Birthright Citizenship
February 20, 2025
Several courts have enjoined the Trump Administration from enforcing the president’s executive order to government agencies to not recognize certain people born in the United States as American citizens. The 14th Amendment to the Constitution in its plain language, historical context, legislative history, and subsequent Court interpretation is clear that anyone born in the United States, unless their parents are part of an invading army or foreign diplomats temporarily stationed here, are citizens of this country. Full stop. There are seldom legal interpretations that are 100% objectively incorrect, but Trump’s is one of them. Any court that orders otherwise is making new law with no basis in existing law, history, or tradition.
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. Amend. 14, Section 1. Emphasis added.
The Supreme Court ruled definitively in US v Wong Kim Ark (1898)1 that the only exceptions to birthright citizenship were for foreign diplomats, invading armies, and Native Americans.2 This is what “and subject to the jurisdiction thereof” means, despite Trump’s argument that it means one’s parents had to be citizens at the time of birth. The Wong Kim Ark Court rejected this argument in the 19th Century and no court has held differently since then. There is evidence that the framers of the 14th Amendment meant the clause to mean exactly what the Court said it means in Wong Kim Ark. It is true that some legislators have tried to change this at times over the past 130 years, but the fact that they made efforts to change the law suggest that even they agreed that this interpretation was the correct understanding of the 14th Amendment.
What is the reason for this attempt to end birthright citizenship? Well, the easy answer is that it is partial fulfillment to Trump’s racist dog whistling on immigration for the past ten years. But it is more than that. Attempts to strip citizenship from individuals are always related to reducing them to a stateless and thus exploitable workforce or for the purposes of ethnic cleansing or genocide. As of 2016, at least four million Americans born here had at least one parent who was an unauthorized immigrant. The data is hard to parse, so we don’t have a clear picture of this population. For instance, government data sometimes considers people born in Puerto Rico as foreign-born when they are, in fact, American citizens. It is also unclear how many of these four million are persons who were permitted here under Reagan’s amnesty or because their parents settled here under political asylum. In any case, millions of Americans will be stripped of their citizenship if Trump’s plans are allowed to continue. Many - probably most - will have no country to return to. They will have no attachment to their parents’ home countries, and those countries may very well deny them entry if deported there. But is the plan really to deport these folks? These folks are citizens; they are not part of the estimated 11 million undocumented immigrants Trump has promised to deport en masse. And deporting all of the people he has already said he wants to deport is enough of a logistical nightmare.
Here’s what Trump’s plan might look like. Americans whose parents were not born here will have their citizenship stripped of them. At this point, Trump will declare they have no rights. (This would be another 100% objectively incorrect legal assertion, but if he gets away with the first one what is to stop him with the second one?)3 At some point, business will push back hard on the deportations that are damaging their ability to hold onto their workforce. Trump will offer some kind of suspended-deportation temporary work permission in exchange for admitting they are not citizens. At this point, he will have created a nationwide workforce of essentially indentured servants. Leave your job? Deported. Join a union? Deported. No country will take you in? Concentration labor camp. There will be no legal means to protest this. If you think this is hyperbole, you are not paying attention.
There is no practical reason to invalidate citizenship for people who have always had it except to exploit them, or worse.
I know a lot of people roll their eyes at the Hitler analogies, but just because one doesn’t want them to be applicable doesn’t mean they are not.4 One thing to understand about the Nazis is that they were heavily influenced by American racial laws and eugenic thinking.5 That’s where they got a lot of their ideas of how to make their system appear legalistic. However, the problem Nazi lawyers were trying to solve worked out chronologically in reverse in the US. Jim Crow was a reaction to the ending of slavery; stopping persons from gaining rights they never previously had. In Germany, they needed to take away the rights of people who were at the time fully German citizens.6 So even though there is a homegrown history for legal oppression in this country, it is the Nazi practice of denaturalizing citizens that is properly analogous to what Trump is embarking on today.
The Second Nuremberg Law7 laid out the denaturalizing of German Jews by changing the definition of citizenship to include only those persons with a blood relation to non-Jewish German heritage. The inspiration behind this was the blood relation racial definitions in American segregation laws. In the US, citizenship based on blood relation - something that the Supreme Court invented in Dred Scott v. Sanford8- was eliminated with the passage of the 14th Amendment in 1868. The birthright citizenship clause was intended to directly overrule the Dred Scott decision.
An additional thing that the Second Nuremberg Law did that is noteworthy for this discussion is that it contained a clause that outlawed birthright citizenship. A citizen could only be one of German or related blood, certified to that fact by a Nazi agency. Subsection 3 of the Law provided that “[t]he Reich citizen is the sole bearer of full political rights in accordance with the law,” which was a legal way of saying that the citizenship rights were not inheritable. Every generation would have to prove they qualified as citizens. This is something to keep in mind as the Trump Administration’s anti-citizenship rhetoric develops. When you hear them question birthright citizenship more generally, they may be trying to set the stage for undermining the entirety of section 1 of the 14th Amendment and let the Administration decide who is and is not a citizen regardless of birth or parentage.
There is another aspect to this mass denaturalization that bears noting: all 15 million or so of these Americans will be stripped of their voting rights. They will be forbidden from ever voting in another federal election, which will help cement the electoral support and popular legitimacy for this fascist project. Popular legitimacy is important for fascists, even if it is not in fact achieved. One might say it is essential in seizing power in a democracy. The propaganda benefits of legitimacy undermine one the of the democrat’s strongest arguments: that the people do not want this kind of government.
Marienwerder, East Prussia, July 11, 1920. Day of the plebiscite to decide whether they would be part of Germany. The district had a large German population but was geographically more related to Poland. Marienwerder became part of Poland after 1945.
Republicans in Congress have proposed the SAVE Act, which will require voters to present birth certificates in order to register to vote. The act requires the name on the birth certificate to match the registration name.9 There are a number of problems with this legislation, but the name match is an insidious one. It can be, and probably is intended as, a method to disenfranchise millions of women who legally changed their names when they married.
After disenfranchising millions of citizens through revoking birthright citizenship and perhaps millions more women (and some men) whose legal name does not match their birth certificate, my guess is Trump will propose a national plebiscite to endorse his leadership and agenda. This would be tool in the fascist tool box that would come next. Disenfranchising voters and then asking the rest to legitimize your rule.10 This problem of the plebiscite - allowing leaders to bypass republican institutions and appeal directly to the public - was one of the foundational challenges in drafting postwar European constitutions. In form, the plebiscite appears democratic, but in practice it is a dangerous tool for demagogues to consolidate unaccountable power and undermine democracy.
This is the dangerous path we are on right now. The fight over birthright citizenship is not just a moral one about respecting human rights or a political one about a fair organization of the polity. Denaturalization is about consolidating power, political and economic. The corporate interests supporting Trump will be all too eager to have a compliant workforce that has no choice but to work for them at whatever terms they set out. After all, that is why Musk was so vocal about keeping the H1-B visa program, which allow corporations to hold the right to stay in this country over the heads of the program participants so that they work for them compliantly. Think of that on a mass scale across all sorts of industry and you see the common interest capitalists and fascists share. The political interests of the Trump Administration need to find a way to stop us from having free and fair elections going forward. Denaturalization is a part of their program to disenfranchise voters.
United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Native Americans were at the time were considered quasi-sovereign nations under constitutional law, but since then Congress enacted a law granting them US citizenship by birthright.
Except where explicitly noted, the rights and protections in the Constitution apply to everyone under the jurisdiction of the U.S., including people just passing through.
Hopefully, current events can do away once and for all the criticisms that such historical analogues are alarmist and overreactions. It should not have come to this, but for years too many people turned their backs on the evidence mounting that the Republican Party was becoming a neo-fascist political party.
See James Q. Whitman, Hitler's American Model: The United States and the Making of Nazi Race Law (Princeton Univ Press: 2017).
Germany did look to American immigration and citizenship practices as a model, but the analogies were not completely accurate since Jews were citizens of Germany at the point the Nazis implemented the Nuremberg Laws. Most important American legal import to these laws were determining who was a Jew by blood relation. The denaturalization of citizenship of the Jews was a Nazi innovation. But only because before the adoption of the 14th Amendment' and its birthright citizenship clause there was no US citizenship in the way that term was understood in the mid-20th Century. So the Nazis looked to blood relation as dispositive of citizenship where the US looked to place of birth. Adopting the American model would not help the Nazi project to denaturalize Jews of their German citizenship. This is the same problem that confronts the Trump Administration in its denaturalization project.
The Second Nuremberg Law stated: “(1) A Reich citizen is a subject of the state who is of German or related blood, and proves by his conduct that he is willing and fit to faithfully serve the German people and Reich. (2) Reich citizenship is acquired through the granting of a Reich citizenship certificate. (3) The Reich citizen is the sole bearer of full political rights in accordance with the law.”
Dred Scott v. Sandford, 60 U.S. 393 (1856).
The Act does allow for a few other government documents in place of a birth certificate, such as a REAL ID driver’s license and a passport. It notably omits documentary evidence of change of name, whether via marriage certificate or other court order. If one’s legal name is consistent with that on a driver’s license or passport, then they can probably register to vote. However, a lot of Americans do not have passports and plenty do not have driver’s licenses (especially, REAL ID licenses).
It may take a different form in the US. In 1933, Hitler called an election to solidify and legitimize his government. He jailed and threatened opposition leaders and his street thugs committed widespread acts of violence against the opposition. Even still he did not win a majority on his own - the Socialists and Communists together won almost as many seats as the Nazis did. Hitler only attained a majority with the votes from a minor nationalist party, which was then outlawed along with every other party aside from the Nazis. Trump could utilize something that looks more like a regular national election here rather than a true plebiscite.
An interesting historical extrapolation from where we are now.