Trump may welcome a birthright fight
On Tuesday U.S. President Donald Trump threatened to sign an executive order ending automatic citizenship for persons born to foreigners on U.S. soil. Trump made the vague promise while freestyling in a press scrum, insisting that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.”
I’m sure every Canadian who saw this will have had at least some tiny flicker of the classic hurt reaction: “JEEZ, we are RIGHT HERE. Adjacent, even! Why do they always forget us?”
Jus-soli citizenship — or “birthright citizenship” as it is being called as it becomes a larger political issue in the U.S. and a minor one in Canada — is the norm throughout the Western Hemisphere. It is uncommon anywhere else — anywhere, that is, that doesn’t have a mass population descended from post-Columbian invaders. Trump’s goofy claim was a classic example of the irresistible core Trump tactic: make an indefensible factual assertion or a silly error that starts, and enables you to choose the terrain for, a more detailed political fight.
It is hard to know whether he really knew he was amazingly wrong in saying that the U.S. is the only country with pure jus-soli citizenship. It is hard to know how much he cares about being wrong, or to know whether the line was just something he was handed by smarter, more cynical operatives. I don’t even know if I can say that the president had a personal goal of getting people to talk about the nature and essence of citizenship. I just know that this will be the effect. The knowledge that there is a broad spectrum of possible alternatives to birthright citizenship will spread, and people will start thinking about whether absolute birthright citizenship makes perfect sense.
Which, let’s face it, it probably does not. The edge case of jus-soli citizenship is someone who, not even being a standard-issue illegal alien or refugee claimant, gives birth in the target country as a tourist — doing so explicitly for the purpose of acquiring that country’s citizenship for her child, and then immediately going home. This is something that happens in both the U.S. and Canada, though it seems to be vanishingly rare here, for now.
Almost everybody would regard granting citizenship automatically to such a child as somewhat absurd and unjust in itself. To give such a child the enormous social and legal entitlements of a citizen is difficult to justify as anything but a tolerable exception made to preserve a beneficial bright-line rule. Birthright citizenship, the argument goes, is good for the country overall. It is therefore worth defending even in what are otherwise ridiculous and extreme instances: the alien with a hand-picked birthplace, but no other connection to Country X, has to be recognized as a citizen to protect the rights of others, such as undocumented resident aliens, from political erosion and scheming nativist attacks.
You can tell that this is the underlying logic, because when “birth tourism” is mentioned, the almost universal answer is that it hardly ever happens and does no discernible specific harm. (Individual actions can’t add up to or evolve into a collective social problem, right? Woo! I just solved climate change!) Jus-soli edge cases are absurdities to be borne, rather than defended on their own merits. The position that citizenship is really just a technical matter of birthplace, and that it has no social meaning or any value that requires administrative preservation, is not one that most people want to be heard taking.
But when Trump rubbishes birthright citizenship verbally, the people who rise up in indignation will not be especially careful about this (and they have not been). I am not sure the president’s talk of an executive order is just a simple head fake, either. Jus-soli citizenship is very strongly entrenched in U.S. law: it will be really, really hard to get around the U.S. Supreme Court’s Wong Kim Ark decision of 1898. Wong Kim Ark was an American-born child of Chinese parents who were explicitly ineligible for U.S. citizenship under “Chinese exclusion” laws. The court ruled that Wong was nonetheless a U.S. citizen himself, under the citizenship clause of the Fourteenth Amendment.
Wong’s parents were legal above-ground resident aliens, so some scholars have flimsy ideas about switching illegal aliens to a different factual footing, and somehow denying automatic citizenship to their U.S.-born children in an imagined courtroom setting. But instant birthright citizenship has been an accepted axiom for a long time. Even scholars like Judge Richard Posner, who believes that pure birthright citizenship is absurd and would like to see it limited, usually concede that such limits would require Congressional action. Others — a great majority, perhaps even among judicial conservatives — acknowledge that a correction would probably require an amendment to the Constitution.
A mere Trumpian fiat instructing immigration officials to interpret the Constitution in a novel way, contrary to the Wong tradition, would probably be snuffed out by the courts in a matter of days. This doesn’t mean that the fight itself would not benefit Trump — or benefit a Republican party that seems increasingly comfortable living with Trump’s bizarre but effective tactical instincts.