Contributor: Ending birthright citizenship will mostly affect U.S. citizens

The Trump administration’s executive order to limit birthright citizenship is a serious challenge to the 14th Amendment, which enshrined a radical principle of our democratic experiment: that anyone born here is an American. But the order will most affect average Americans — whose own citizenship, until this point, has been presumed and assured — rather than the intended target, illegal immigrants. The irony is hiding in plain sight.

Contrary to conventional wisdom, birthright citizenship is not entirely settled U.S. law. The executive order states, “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States” and it is very narrowly drafted to exploit this uncertainty by rejecting citizenship to children born in the United States to parents who are not citizens or legal permanent residents. Federal law and practice has recognized American citizenship to anyone born here since the Supreme Court’s landmark 1898 decision in U.S. vs. Wong Kim Ark. But that case did not specifically protect the birthright of children born in the United States to noncitizen, nonresident aliens.

This is a massive blind spot that states are sleep-walking into. They are depending on weak legal precedent, federal code, policy and hair-splitting over the meaning of “subject of the jurisdiction thereto.” In a brief, the states argue that the “understanding of birthright citizenship has permeated executive agency guidance for decades — and no prior administration has deviated from it.” But that won’t matter to this Supreme Court, which has demonstrated a certain glee in dismantling precedent. There is a clear risk that the justices could fundamentally restrict the definition of birthright citizenship and overturn the 1898 ruling.

The executive order directs the federal government not to issue or accept documents recognizing U.S. citizenship for children born to parents unlawfully present here — but also to parents who are here legally but temporarily. This second group is a potentially vast population (the State Department issued 14.2 million nonimmigrant visas in fiscal year 2024) that includes students, artists, models, executives, investors, laborers, engineers, academics, tourists, temporary protected status groups, ship and plane crews, engineers, asylees, refugees and humanitarian parolees.

A limited change targeting a specific population — nonresident aliens — will have huge effects on those who will least expect it: American citizen parents giving birth to children in the United States. Until this point, a valid, state-issued birth certificate established prima facie evidence of U.S. citizenship to every child born in the country. That would no longer be the case if citizenship depended on verifying certain facts about every U.S.-born child’s parents. With that presumption removed by executive order, citizenship must be adjudicated by a federal official.

I know what that adjudication involves. I was a U.S. consular officer in Latin America, and both of my children were born overseas to married U.S. citizen parents carrying diplomatic passports. But because they did not have the presumption of citizenship conferred by an American birth certificate, we had to go to the U.S. Consulate for adjudication of transmission to demonstrate to the U.S. government that our children were American citizens.

This was document-intensive and time-consuming. Each time, we filled out forms. We photographed the baby in triplicate. We swore an oath before the consular officer. We brandished our passports. We presented the baby to the consular officer. We surrendered the local birth certificate. We demonstrated our hospital stay. Only then did we receive a Consular Report of Birth Abroad and only with that report could we apply for U.S. passports for our children. Without the report or a passport, our children could neither leave the country of their birth nor enter the United States.

That is an evidentiary and bureaucratic burden that all natural-born American citizens have until now not had to bear. The Trump administration’s change, if allowed by courts, will require those same parents to prove their own citizenship to the federal government. Good luck, because showing your birth certificate wouldn’t be sufficient in the new regime: The government would require proof not only that you were born in the U.S., but also that at least one of your parents was a U.S. citizen at the time. (Supreme Court Justice Brett Kavanaugh expressed skepticism over this “practical question” during oral arguments last week.)

Americans several generations removed from their immigrant forebears — even those whose ancestors came to North America 10,000 years ago — will suddenly be treated like the unlawfully present parents they thought this rule was designed to exclude.

This rule will lead to chaos, even danger. The federal bureaucracy will have to expand drastically to adjudicate the 3.5 million children born here every year. (For comparison, 1 million people are issued permanent residency status each year and 800,000 become naturalized citizens. This population is typically much better documented than a newborn.) Fearing immigration enforcement, undocumented parents will avoid hospitals for childbirth, dramatically escalating medical risk for mother and baby. Because hospitals also generate birth certificates — as Justice Sonia Sotomayor also noted last week — those babies will form a large, new and entirely avoidable population of stateless children.

It is a truism in some communities that ancestors and family members came to this country legally. But the administration is prepared to dismantle the presumption of citizenship that has been a literal birthright for 125 years. U.S. citizenship is on the brink of becoming a privilege rather than a right, bestowed on those who can afford protracted bureaucratic struggles. Most of the burden will fall on those who least expected it: American parents themselves.

James Thomas Snyder is a former U.S. consular officer and NATO International Staff member.