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Ending birthright citizenship would change the meaning of America | Moira Donegan

American opponents of birthright citizenship – the right of all those born on the soil of a country to claim full legal rights and political representation in that nation – like to point out that many countries don’t have it. On Wednesday at the supreme court, during the oral arguments in Trump v Barbara, the case challenging Donald Trump’s attempt to end birthright citizenship in the United States by executive order, the Trump administration’s solicitor general, John Sauer, claimed that “almost every country” denies birthright citizenship. Trump himself made the unusual choice to attend the oral arguments in person, signaling his investment in the issue and perhaps hoping that his presence would intimidate the justices into ruling in his favor. But he left soon after Cecillia Wang, a lawyer for the ACLU who represented his opponents in court, began speaking. Not long after he left the supreme court building, Trump used Truth Social, his proprietary social media platform, to echo the rightwing argument about the supposed rarity of birthright citizenship worldwide. “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship! President DONALD J. TRUMP” he posted.

This is not true. The United States’ birthright citizenship – which was originally established in very plain, explicit terms in the 14th amendment, and has been reaffirmed twice by Congress and by more than a century of supreme court precedent – is typical of the Americas. In the western hemisphere, only a handful of countries deny automatic full citizenship to infants born within their borders. They are contrasted with the rest of North and South America, where the legacy of slavery led most states to adopt birthright citizenship.

Setting aside the question of whether the United States should take governance cues from other countries, birthright citizenship has long been fundamental to American law, policy and self-conception. To deny citizenship to those born to parents in the country illegally, as the Trump administration aims to do, would create a permanent underclass in the US – people who live their entire lives in America, but are not entitled to call themselves Americans, people who must support themselves here but largely cannot do so in the formal economy, people who are subjected to this nation’s laws for their entire lives but who have no say in electing the representatives who make them. It would create a class of persons excluded from the American community and the American dream by virtue of their heredity. Critics of the Trump administration’s policy point out that ending birthright citizenship would create bureaucratic chaos and potentially cripple the American economy – all legitimate concerns.

But the true danger of the Trump regime’s attack on the birthright citizenship clause is not financial, but moral. It would change what it means to be an American, and in so doing it would change what America means. Ending birthright citizenship would effectively end the United States’ experiment in striving to be a creedal nation that delivers democracy to a vast and diverse population of equals. It would make us instead something more vulgar, more common, and less special: a nation defined by ethnicity and heredity, those banal accidents that carry no righteous vision or moral aspiration, but only meaningless inheritance; a nation defined not by the hopes for its people’s future but by the unchangeable facts of their past.

The fact that this foundation of American citizenship and identity predates Trump, and that he has no authority to challenge it, should have been enough to prevent the case from ever coming before the supreme court. The justices did not have to hear this case; it reflects badly on them that they chose to. It is little credit to the integrity of the supreme court that the justices on Wednesday seemed broadly and acutely skeptical of the Trump administration’s position. There did not appear to be five votes for ending birthright citizenship as we know it: conservative justices, including Trump appointees Amy Coney Barrett and Neil Gorsuch, seemed outright contemptuous of the administration’s position, while Chief Justice John Roberts and the third Trump appointee, Brett Kavanaugh, also appeared skeptical.

Justice Samuel Alito, who was celebrating his 76th birthday on Wednesday, appeared to be crafting an argument that would allow him to vote to uphold the Trump administration’s flimsy and largely incoherent argument that undocumented immigrants are not “domiciled” in the United States, or that the 14th amendment’s longstanding carve-out exempting the children of foreign diplomats from birthright citizenship could somehow also apply to infants born to undocumented mothers. He did not seem to find sympathy for this effort among his colleagues.

Prediction is the lowest form of journalism, and the Roberts court, dominated as it is so heavily by pro-Trump, far-right justices, has issued opinions in the past that were favorable to Trump’s aims even after oral argument sessions in which the justices seemed skeptical of his side’s arguments. But what seemed most likely at the end of Wednesday’s hearing is that the court will decisively rebuke the Trump administration’s attempt to rewrite the constitution and create a permanent underclass by mere decree: a 7-2 or 8-1 opinion against Trump seems likely. This is what counts, these days, as a victory for the rule of law. But that the Trump administration was able to force this question, and that the court was willing to even entertain it, is a testament to the woefully degraded state of American democracy.

Why did Trump make the unusual decision to appear in person at the birthright citizenship arguments on Wednesday? One might have expected him to do so at other moments when the court heard arguments on issues related to his personal priorities – when they heard the case challenging his tariffs, for instance, or when they sat for arguments regarding his personal immunity for crimes committed while he was in office during his first term. That he came for this, the deliberation over whether he could personally redefine what it meant to be an American, seems an indication of his truest agenda: which is not merely to enrich himself, but to reshape the American polity permanently. We are lucky – at least in this instance, at least for now – that he doesn’t seem likely to succeed.