Birthright Citizenship

It's Personal

In Trump v. CASA the Supreme Court recently granted a stay of nationwide injunctions that would otherwise stop the Trump administration from applying Executive Order No. 4160, “Protecting the Meaning and Value of American Citizenship”. This executive order denies the right of citizenship to certain persons born in the United States, contrary to established interpretation of the Fourteenth Amendment of the Constitution which 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.”

The Supreme Court did not rule on the constitutionally of the executive order, restricting itself to only the applicability of universal, nationwide injunctions to the matter being litigated. The court 6-3 ruling that such nationwide injunctions aren’t applicable is controversial and there is little doubt that the executive order will be found to be unconstitutional.

CASA, in particular, involves an effort by President Trump to override the guarantee of birthright citizenship—a guarantee that is fundamental to the amendments that transformed our Constitution during Reconstruction. Trump’s action directly conflicts with the text of the fourteenth amendment, the consistent understanding of that text since its adoption, and the views of virtually all scholars. When a few Trump-friendly scholars attempted on the fly to construct a post hoc constitutional argument for the President’s executive order, they were subject to withering (and overwhelmingly persuasive) criticism. And every lower court to have decided the question has concluded that Trump is wrong—that birthright citizenship is enshrined in the Constitution¹.

By granting it’s stay, the Supreme Court allows the Trump administration to enforce and implement the executive unless a lower court issues an injunction for a specific individual or group or until the court rules that the executive order is illegal. That means that many birthright citizens could be stripped of their rights for quite a while, perhaps forever if the court upholds the executive order.

This is a personal matter for me as I am a birthright citizen. My parents emigrated to the from England² and were not U.S. citizens when I was born. I enjoy the rights, privileges and pride of U.S. citizenship because of the Fourteenth Amendment. I was an American citizen the moment I entered this world by the simple fact that I entered it in Pittsburgh, Pennsylvania. How lucky I was.

Many of my media channels gave rise to fear that my U.S. citizenship will be taken away from me and I’ll need to move to somewhere in the U.K. However, when I read the actual executive order, most of my personal fears go away.

The order states that U.S. policy is to not recognize the United States citizenship of 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.” The executive order further states, “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.

Now, I’m sure that both my mother and father were lawful permanent residents when I was born. Proving that to be the case might be very difficult, though. I’m pretty sure my parents haven’t saved their green cards from more than six decades ago. So, ICE could abduct me and expedite my deportation to South Sudan or some other hell-hole if Mom or Dad can’t prove their permanent resident status in 1961. Given my criticisms on the Trump regime in Vigilant Citizen, perhaps this isn’t as far-fetched as it sounds³. I’ll continue being a dissident though, betting that the executive order is found unconstitutional before ICE gets its hands on me. They seem pretty busy elsewhere.

There are plenty of others born in the U.S. who could lose their citizenship under the executive order, however. Imagine a son born to a couple attending university on student visas back in 1961. The mother’s presence was lawful, but temporary, the father not a citizen or permanent resident. The executive order means that 64 year-old man who lived his whole life as a United States citizen would now not be one. With only a tiny shift in circumstances, that could be me.

As Independence Day approaches, let me tell you what it’s like to be the first United States citizen in my family tree and what it means to me. I was raised by my parents more English than American, aware that I was different than the other kids in the neighborhood. Most of my parents’ friends were British or from former British colonies and I enjoyed a cosmopolitan upbringing. Yet I always identified as an American. I did away with my British accent when I started school, played baseball instead of cricket, struggled to figure out American culture, to fit in. I was aware of U.S. political issues from an early age. I have a fuzzy memory of the sadness when JFK was assassinated, grew up relieved that the stain of racial segregation in the U.S officially ended in 1964, opposed the Vietnam war but respected those that served in it, was so excited and proud of the space program and the Apollo 11 moon landing.

I received a decent public school education, was awarded financial aid to attend college and moved through life confident that I lived in a land of opportunity and fairness. Yes, being a white male skews my perspective, but I also believed, and still do, that most Americans aspire to equal opportunity for all, even if that has not yet been realized.

I love (yes, love, with a lump in my throat) the words of the Gettysburg Address, that remind us that this country is an experiment, the first of its kind, “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” And to this day, I get teary-eyed when I hear the last words of the Star Spangled Banner, “…the land of the free and the home of the brave.” This is a country founded on moral high ground, on ideas. We don’t always do the right thing, we sometimes make terrible mistakes, but it seems to me that we have remained, to paraphrase and pluralize Lincoln, dedicated to the great task remaining before us, that nations shall have new births of freedom and that governments of the people, by the people, for the people, shall not perish from the earth.

My United States citizenship is not based on my parents, my heritage, my race, my religion, my political beliefs, or my wealth - it is based on an idea of a democratic government, an amendment to its Constitution, approved by a two-thirds vote of Congress and ratified by three-fourths of the states. It doesn’t seem consistent with that idea and our democracy that an executive order written by a handful of the powerful can take my citizenship away from me or anyone else born in our country.

It has been my observation that first-generation Americans and naturalized citizens are among the most grateful for their rights and privileges. America is the home to 47.8 million immigrants…and they are going to have babies. Our heritage, culture and assimilation of immigrants has always made America great and always will. It is a basis for patriotism:

America is one of the only places on earth today that can credibly claim to be a nation of immigrants and that has a history of successfully assimilating new immigrants into our society and watching them make invaluable contributions to it, such as Sergey Brin, Arnold Schwarzenegger, Audrey Hepburn, Yo-Yo Ma, Nikola Tesla, Anna Kournikova, and Albert Einstein. There’s a reason why more immigrants have chosen to call America their home than anywhere else in the world (and it’s not particularly close).

Indeed, America’s founding ideal—the notion that anyone can make of themselves what they want in a society committed to pluralism—has not only served us well but also has been a model, even if at times an imperfect one, for other societies. To be an American is to be part of a project bigger than oneself and also, importantly, one’s ethnic or tribal identity. The country has certainly struggled to consistently live up to this ideal, but it is nonetheless something that we continue to aspire to and that has lit the path for other countries to do the same.⁴

Let’s celebrate America’s founding ideals and the contributions of immigrants this Independence Day, or as my parents’ British family and friends would humorously call it, “We Forgive You Day”.

1. Don't Applaud Supreme Court Conservatives For Doing Trump Special Favors

2. Referring to my parent’s homeland can be tricky. They come from the country of England on the island of Great Britain, one of four countries that make up the sovereign state of the United Kingdom (U.K.). Depending on the conversation, company, and context, my parents are either English, British or from the U.K. My grandparents were particularly picky about these distinctions. When they were feeling parochial, they would be English, when patriotic, British.

3. Last month a writer was sent back to Australia by U.S. because of articles he published on Substack.

Standing up for free speech, even at the border

4. How Democrats Can Maintain Their Patriotism in the Trump Era