The order, titled “Protecting the Meaning and Value of American Citizenship,” seeks to redefine the Fourteenth Amendment. The amendment’s language on citizenship is straightforward: “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 “subject to the jurisdiction” exception is typically taken to mean the children of foreign diplomats.
The first and most important thing to note about the order is that it is not retroactive. Nobody currently living in the United States is affected by it at this moment, no matter their parentage or lawful presence. Instead, it says that it “shall apply only to persons who are born within the United States after 30 days from the date of this order.” In other words, the first children affected by it will be born on or after February 19.
The overall intent appears to be to transform American citizenship law from jus soli—a Latin term for when children acquire citizenship from the soil on which they are born, so to speak—to a solely jus sanguinis system where citizenship is passed down solely by dint of ancestry and blood. That would represent a sharp break with historical practice and shift the U.S. towards the Old World’s approach to nationality.
But the order’s terms go well beyond that group to cover any child born to parents who did not have green cards or U.S. citizenship at the time, even if they were otherwise lawfully present in the country. A child born to two H-1B visa recipients in Silicon Valley, or to two student-visa recipients at Ohio State University, or to two H-2A farm workers in a Florida citrus farm would be affected by the order. It would also apply to children born to parents who are in the country under the Temporary Protected Status program. Since the number of legal immigrants is much larger than the number of undocumented ones, that could amount to tens of thousands of births each year.
The order may not have been crafted with Harris in mind. (If it had been, it would apply retroactively.) It also can’t be ruled out after some of Trump’s top legal allies, including January 6 mastermind John Eastman, previously argued that Harris was not a birthright citizen and thus ineligible for the presidency. Either way, it underscores how the order can cover people who have never known any life other than within the United States and who are culturally and socially woven into the fabric of American life.
As a result, the executive order itself amounts to more of a willful blindness of one’s citizenship status than an outright revocation of it. It says that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by state, local, or other governments or authorities purporting to recognize United States citizenship” from anyone covered by its terms.
But the accepting-documents provision carries more weight, though a lot will depend on how far the Trump administration is willing to go to enforce it. Federal agencies check a person’s citizenship for a variety of reasons. The most obvious example is for employment: Every business in the country is required to fill out I-9 forms for new hires. But no one covered by this executive order should be getting a job anywhere for at least 15 or 16 years. Children affected by the order could still be caught up by it in other ways: It could make it difficult or perhaps impossible for them to obtain a U.S. passport, among other government benefits.
The bad news is that the Trump administration appears to believe that the courts will simply reinterpret the Fourteenth Amendment in their favor. (I would not be surprised if this is the real reason why it doesn’t apply retroactively, for example.) Here is where describing “the law” and “the Constitution” falls apart. If the text, original meaning, and precedent still matter, Trump should suffer a 9-0 defeat at the Supreme Court when this order reaches them. That day will likely come soon since it is already facing multiple challenges from eighteen Democratic-led states, from the ACLU and other civil-rights groups, and from others.
I do not have a high opinion of the justices these days, nor am I particularly confident in their ability to correctly read the Constitution. These are the same nine justices who gutted the Fourteenth Amendment’s Disqualification Clause last spring to avoid applying it to Trump; this is the same conservative majority that conjured “presidential immunity” out of thin air last summer to shield him from a federal criminal trial. If Trump had issued this executive order after his first inauguration in 2017, I would already be writing its obituary. But it is not 2017 anymore.
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