What did Donald Trump do today?
He pretended he hadn't lost the birthright citizenship fight.
Trump signed two executive orders today, purporting to alter who the Constitution considers a citizen. The Fourteenth Amendment states that every person born in the United States "and subject to the jurisdiction thereof" is a citizen of the United States. The only people courts have ever recognized as not being subject to the jurisdiction are the children of foreign diplomats or—at the time of its adoption—Native American nations that had not submitted to federal authority.
The Supreme Court ruled in 1898, and then again, at Trump's behest, earlier this year, that the plain text of the amendment meant what it meant, and that Trump could not simply waive it on a whim. That decision infuriated Trump, who called the last 128 years of legal bedrock and the judges who had upheld it "STUPID." In today's orders, Trump is once trying again to impose new definitions that go beyond what the Constitution says, purportedly barring from citizenship the children of what he calls "birth tourists": babies born to mothers on short-term visas.
This is extremely unlikely to have any legal effect on children born to parents with visas in good standing, since the Court has just upheld that the children of people here unlawfully are citizens. What Trump calls "birth tourism" is rare and swamped by the number of Americans who, for various reasons, themselves have children in other countries. That rarity is for good reason: American citizenship doesn't offer much in the way of tangible benefits to foreign parents, other than the opportunity for their child to pay taxes in a country they don't yet live in. So-called "chain migration," where citizen children sponsor their own parents for immigration, is extremely difficult in practice, unless you are a naturalized citizen married to Donald Trump.
The order also excludes the children of "enemy aliens," which would likely
pass Constitutional muster if there were an invading army camped on
American soil, but only a real one—not the rhetorical "invasion" of
immigrants Trump sometimes talks about at rally speeches. Nor would it apply to people Trump personally deems "enemies" like Americans of Somali descent.
Why does this matter?
- Americans are Americans whether Donald Trump likes it or not.
- Pretending you have power you don't doesn't make you look strong.