This morning, it was reported that President Trump has plans to revoke birthright citizenship by executive order. This is yet another example of Trump’s willful ignorance, or his deliberate deception. Or both. After all, a president cannot revoke a constitutional protection by executive order. That isn’t how any of this works. Accordingly, many pundits have said we shouldn’t worry about this latest antic.
But the pundits shouldn’t be so blasé. Given the relatively minimal checks the House and Senate have placed on Trump’s unethical and even criminal behavior, we should expect that he will take steps to begin destroying birthright citizenship. Trump campaigned on that objective. He has proclaimed a thinly veiled White nationalism that reaches back into a long history of excluding people of color from citizenship, either literally or effectively. And the fact that there are mostly Latinx migrant children living in a tent camp detention center in Tornillo, Texas, right now should make us even more vigilant about his intentions. And we must not forget that immigration rights lawyers have decades of personal stories about how sometimes legal immigrants are illegally deported or have their green cards illegally taken by immigration agents. Vulnerable populations are always at risk of having their rights breached no matter how firmly established they are.
That said, if Trump did sign this executive order and attempt to enforce it, it would immediately trigger a spate of lawsuits charging that the president had violated the 14th Amendment. And what then? A signature priority of this administration has been to pack the federal courts with ultra-conservative—and in numerous instances clearly unqualified judges. While it seems unlikely that even the most conservative among them would overturn birthright citizenship, it is possible that if and when the case made its way to the Supreme Court, the Court could weaken or limit its enforcement with devastating impact. Moreover, regardless of what it rules the Court can’t force the president to adhere to its ruling. It has no military and no police, no enforcement power of its own. It depends upon the political branches. Sadly, the House and Senate have shown themselves to be weak protectors of freedom and justice in this political season. As the historian Martha Jones has shown in her brilliant book “Birthright Citizens,” history shows that it was a hard fought for right, one that is at once essential and fragile.