Trump’s Plan to Gut the 14th Amendment and Redefine Citizenship

This is not just about deporting the undocumented, U.S. citizens are in the crosshairs too.

Donald Trump and his allies appear to understand that mass deportation is likely to see a sharp backlash. It is their signature campaign promise and top policy priority and they plan to deploy the military into the streets of our neighborhoods to conduct mass round-ups of our hardworking, law-abiding immigrant neighbors, but it will be “bloody” and will wreck the economy for working people– That likely explains the ongoing coordinated messaging campaign defining immigrants as “criminals” as a smokescreen in an effort to justify their purges targeting everyone possible. No one should fall for this trap. 

Prioritizing the deportation of criminals and public safety threats makes common sense – better to go after the bank robber before chasing the jaywalker. That's the current policy of the Biden administration. But, Trump’s team has been clear that they will prioritize the deportation of everyone they can get their hands on, making undocumented grandmothers as much of a removal priority as dangerous public safety threats. As Reuters’ Ted Hesson reports: “Trump intends to scrap Biden administration guidance that prioritized people with serious criminal records for deportation and limited enforcement against non-criminals..”

But here’s the thing, Trump’s mass deportation list is not limited to criminals, public safety threats or recent border crossers. Nor is it limited to the millions of tax-paying, law-abiding undocumented people currently living in the United States. Tom Homan, the incoming “Border Czar” has made crystal clear that “no one is off the table,” including the U.S. citizen children of an undocumented parent - an estimated 4 million American kids. 

As shocking as the targeting of U.S. citizens for removal may be, it directly flows from what Trump and his allies have promised for years – the evisceration of the Birthright (“Constitutional’) Citizenship Clause of the 14th Amendment, which guarantees U.S. citizenship to people born in the U.S. 

This is not hyperbole. They tried it last time and are gearing up for a much more serious effort during Trump’s second term. Expect to see an executive order, perhaps on Day 1, targeting the Constitutional Citizenship guarantee in the 14th Amendment. As detailed reporting by the New York Times illustrated:

“the [Trump] team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.” 

The tortured legal argument they’ll offer in support will be that the children of an undocumented immigrant parent are not subject to the "complete jurisdiction" of the United States and thus, not covered by the 14th Amendment of the Constitution, which reads:

 “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 Trump administration's coming legal reasoning, of course, defies Supreme Court precedent. See the 1898 seminal case, U.S. v Wong Kim Ark for the definitive establishment of birthright citizenship guaranteed in the 14th Amendment. Justice Horace Gray wrote for the majority:

“[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens”

But no one should harbor the comforting delusion that long-standing precedent will guide the current Supreme Court. There is no evidence to suggest that the hard-core conservative majority would consider this issue without political or ideological bias.

It’s critical to remember that the 14th Amendment was enacted to overrule the Supreme Court’s infamous Dred Scott decision which held that Black people born in the U.S. were not citizens, but chattel to be bought, sold and abused. The Reconstruction era constitutional Amendment not only provided citizenship to Black Americans, it shaped the nation’s understanding of citizenship for the last 150-plus years. 

What happens if Constitutional Citizenship is held to include only the children of United States citizens and green card holders? The implications here are as far-reaching as they are disturbing but we cannot afford to ignore their considerations. Will physicians be required to report pregnancy and maternity information to ICE? Will ICE post agents in hospitals? Will U.S. citizens be denaturalized? Will Homan’s deportation force require not only our papers but that of our parents? What percentage of our blood makes us fully American? And would be making millions of American children stateless?

It’s also worth exposing the farce of the great replacement conspiracy theory that this assault on Constitutional Citizenship will be sold. The claim is that people come to the United States illegally and give birth to gain US citizenship for themselves. The argument is absurd on its face. Here's how that would work in the real world: 1) a woman enters the country illegally and gives birth to a U.S. citizen child; 2) But the woman must then wait until her child is 21 years old with a good enough job to sponsor her; 3) Once her child successfully petitions for her she must depart the US to obtain an immigrant visa at the US consulate in her home country (but she cannot get one in the US if she entered without authorization);  and 4) Once she leaves the US she's barred from returning to the US for 10 years because of her unlawful presence. Said another way, in the fastest scenario possible, the woman could apply to become a U.S. citizen by giving birth in the US is 36 years! Let's do the math: 21 years until the child can sponsor their mother, plus 10 years out of the US, plus 5 years from green card to citizenship, equals 36 years.

The absurdity of this claim should reveal that this is to send the signal to MAGA voters that they are going to be cruel and they are going to be cruel to the children of immigrants. It also reveals the lie and the nefarious intention underneath. Trump's attack on Constitutional Citizenship is more about relegating the children of undocumented immigrants into a permanent underclass forever subject to abuse by unscrupulous employers (like Trump at his golf courses, vineyard, and construction projects). It also makes those children, who were born and raised here and for now guaranteed citizenship subject to denaturalization, detention, and deportation.

The incoming nativist regime is telling us exactly who they are and what they plan to do. It's not a secret. We can stick our heads in the sand, lacking the imagination Trump and his allies have to conceive of a different version of who gets to be an American. Or we can be honest about the threat and their plans, doing the work to reveal the horrific, unpopular agenda the Trump administration seeks to foist onto a new, redefined American people.