According to Axios, President Trump is gearing up to sign an executive order that would, in their words, “remove the right to citizenship for babies of non-citizens born on U.S. soil.” There is some ambiguity in this formulation. Will the executive order in question limit birthright citizenship to the children of U.S. citizens, or will it extend citizenship to the children of lawful permanent residents, as in the case of most market democracies that have revised their birthright citizenship rules in recent decades? It is not clear from the video clip provided by Axios on HBO.
In truth, Trump’s response to reporter Jonathan Swan’s question seems rather off the cuff. At first, the president explains that while he once thought bringing an end to automatic birthright citizenship — presumably for the children of any class of non-citizens born in the U.S., whether legally present or otherwise — would require a constitutional amendment, he has since been persuaded that a statute would do, or even an executive order. Pressed by Swan as to whether such an executive order was in process of being drafted, Trump confidently replied that “it’s in the process, it’ll happen.” Will it happen, though? I’m skeptical.
First, I should stipulate that I have in the past argued for an amnesty for the long-settled unauthorized-immigrant population that would be accompanied by a constitutional amendment that would do two things: (a) grant Congress the authority to revise the rules around automatic birthright citizenship and (b) allow naturalized U.S. citizens who are otherwise eligible to serve as president. I’ve since changed my mind.
Though an amendment along these lines would have a hard time clearing the high hurdles we rightly put in the way of new constitutional amendments, it struck me as a tough-minded but ultimately fair way to address a serious and legitimate concern often raised by critics of an expansive amnesty: that such an amnesty would encourage further unauthorized inflows, future unauthorized immigrants would form families in the U.S. (including native-born citizen children), and these mixed-status households have long been among the most sympathetic cases, as most Americans are, for good reason, reluctant to divide families. If mixed-status households are a barrier to stringent enforcement, revising the rules around automatic birthright citizenship seemed like a legitimate solution — indeed, a solution that has in the past appealed to partisans of more open borders.
If you believe that opponents of an expansive amnesty ought to be anathematized, a sentiment often expressed by admissionists, addressing their concerns is an inciting thing to do in itself. I disagree. As the political scientists Matthew Wright, Morris Levy, and Jack Citrin have found, “opponents of legalization . . . often cast the issue in strict moral terms, regarding unlawful presence in the country as a blanket disqualification. To give any illegal immigrant a path to citizenship constitutes ‘amnesty,’ an act that transgresses respect for the law, rewards violators, and unjustly pushes aside those who have ‘played by the rules.’” Wright et al. are favorably disposed to legalization, as they call it, but they acknowledge that much of the opposition to it is driven by categorical moral judgments that can’t be reduced to, say, ethnic or racial bias, which is often cited as a driving force. (I discuss these and other related issues at greater length in Melting Pot or Civil War?) Revising automatic birthright citizenship so that it extends only to the children of citizens and lawful permanent residents is, in theory, a powerful signal that the next amnesty would be the last, not yet another amnesty in a long series of them that sap support for the rule of law.
Why have I changed my mind? It’s not because I believe that ending automatic birthright citizenship for the children of the unauthorized is offensive on its face. (As others have mentioned, many market democracies have revised their birthright-citizenship rules, and some of them have devised reasonable compromises, e.g., Australia’s 2007 citizenship law, which Peter Schuck and Rogers Smith recently discussed in National Affairs.) The short answer is that I am more confident we can make immigration enforcement much more effective via mandatory E-verify and focusing our efforts on recent violators, though it will require a political compromise, and I am more concerned about the issues raised by creating a large class of stateless persons. If we can greatly diminish future unauthorized flows, as I believe we can, we can shrink the number of mixed-status households. If we fail to do so, the countries of origin of unauthorized immigrants might refuse to grant citizenship to the offspring of their nationals, which would, I fear, precipitate a serious and lasting problem. It is never wise to give a foreign government that much power to sow chaos in our country. That is why getting enforcement right is so essential.
To return to President Trump’s remarks, I find it hard to believe the Trump White House would pursue an executive order ending automatic birthright citizenship for the children of the unauthorized. For one, the practical realities of implementing such a rule would be enormously complex, and it would face serious legal challenges right from the start. My impression is that this is yet another attempt by the president to telegraph that he takes controlling immigration seriously. The danger, however, is that Trump will further exacerbate the “thermostatic” reaction to his immigration rhetoric, i.e., the fact that the more hawkish the president comes across on the issue, the more moderates and liberals seem to take a more dovish line.
Consider the following from political scientist Daniel Hopkins, a leading expert on public opinion on immigration: “With Trump taking a more hard-line stance than Romney, we might have expected some Americans to likewise shift against a pathway to citizenship, but that’s not what happened,” observed Hopkins. “Instead, Republicans and Democrats alike became more pro-pathway between 2012 and 2016, and much of that uptick occurred during the 2016 campaign. This is a common phenomenon: When a politician advocates for a policy proposal, American opinion sometimes moves in the opposite direction.”
If Trump’s opposition to birthright citizenship becomes a salient issue, it is more likely to undermine the restrictionist cause than strengthen it.