Mother Jones illustration; Getty
On his first day back in office, President Donald Trump signed Executive Order 14160, denying birthright citizenship to the children of undocumented immigrants and other parents who are not permanent residents. On Wednesday, the Supreme Court will hear oral arguments over the order’s legality. If Trump prevails, the case will fundamentally change American society.
“This is not an academic exercise,” says Matthew Platkin, the former Democratic attorney general of New Jersey, who led a coalition of states in challenging the executive order last year. “The consequences for the people in this country, for our government, both at the federal and state and local levels, and just for the fabric of this nation, would be extraordinary.”
When Platkin challenged the order the day after Trump signed it, practical concerns were top of mind. There is no workable way that the states could implement this order. Starting from the very first question—Who would be a citizen?—and cascading on down to what benefits states and local governments could provide to which people, the order threatened unmitigated chaos.
A Trump victory would unleash harm, not just on immigrants and their children, but on every American.
“States, I can just tell you, are not in a position to parse through someone’s citizenship status,” explains Platkin. “The initial order gave the federal government a 30 day implementation window. This is the federal government that can’t even get TSA lines working at an airport. They’re going to figure out a new class of citizenship in 30 days?” He added: “There would be really immediate and long term and probably irreversible harms to individuals, babies born here, their families, the services they they get, the quality of their lives, disrupted and impacted in ways that we can’t possibly even fathom right now. No one has ever really thought that the government could do this, and then for them to sort of cavalierly go and do it with no plan: massive human consequences.”
The legal question in the case, Trump v. Barbara, is whether the 14th Amendment’s guarantee of birthright citizenship applies to the children of undocumented immigrants and people without green cards. And on that legal and historical question, the near universal consensus is that it clearly does. But much less attention has been paid to the harms that a Trump victory would unleash, not just on immigrants and their children, but on every American.
Amicus briefs submitted to the court highlight how the order would fundamentally alter American society. As states pointed out in their litigation against the order last year, newborns around the country would be denied access to food security and health care. During Trump’s winter crackdown, immigrants in Minnesota had babies at home rather than risk being detained while giving birth in a hospital; it’s not hard to imagine ICE sweeps on maternity wards if the order is upheld. Newborns who are hungry, or suffer from untreated health conditions, or who miss their vaccinations, bear the immediate brunt of this cruelty. But the effects would ripple out.
A brief filed by municipal governments and local elected officials warned of a loss of social cohesion, and an increase in bullying and alienation for a new caste of children who know no other home. Barred from federal public assistance, they will be much less likely to have health insurance and ready access to vaccinations, and more likely to suffer preventable diseases. This will ultimately compromise public health more broadly.
The brief also warns of disaster to local economies if Trump implements the order. City and county governments will pay the price of communities unable to get federal food and health benefits, and their tax base will shrink. Businesses and universities may struggle to attract immigrant employees and students, who may fear that if they have children in the US they will end up second-class citizens in their own country. State coffers would be strained. A brief filed by multiple states points out that “states and their subdivisions would also lose millions in federal funding (often for services they must provide regardless of federal reimbursement) and would incur onerous administrative burdens.”
Citizens and those who should become citizens under the order are also vulnerable. A birth certificate would no longer suffice to prove citizenship, and the children of citizens might never obtain that status if their parents lacked the documents necessary to prove theirs. It’s not clear what documentation would suffice, or how far back the ancestry rabbit hole one would have to journey to prove that they are indeed birthright citizens. Citizens might find it difficult to obtain passports, enroll in school, or obtain food and health care assistance when needed.
The American dream is the idea that in the United States, people’s fate is determined by their own merit, not the status of their parents. But the executive order would create a caste of people who inherit a lesser status from which there could be no escape. “The Order would create a permanent underclass of unauthorized and potentially stateless individuals, perpetuating inequality, legal disabilities, and social and economic disadvantages across successive generations,” reads an amicus brief filed by 19 labor unions that warns of economic risk. Around 255,000 children born in the United States every year will be denied citizenship, according to an estimate by the Migration Policy Institute and Penn State’s Population Research Institute. By 2045, the undocumented population would have swollen by 2.7 million, and by 5.4 million by 2075.
“Immigrants and their U.S.-born children—first-generation U.S. citizens—have been the driver of growth in the American labor force over the past 20 years,” the unions’ brief continues. Rather than contributing to the economy and providing critical services like health care, childcare, and education, “successive generations of children born in the United States will be stripped of U.S. citizenship and be excluded from public life, the formal economy, and the ability to live fully independent, productive lives.”
The US has a demonstrated record of stripping citizenship.
Trump’s executive order purported to restrict birthright citizenship going forward, to all those born 30 days after the date of the order. But multiple briefs warn that this is not binding. After all, it’s just one president’s order. If the court agrees Trump’s 2025 order is constitutional, there would be nothing to stop him or any subsequent president from applying it retroactively, potentially stripping millions of people of citizenship based on their family histories. In this way, the rights and livelihoods of millions of people are at risk. “If, as the Administration argues, the Fourteenth Amendment does not make citizens of certain people, neither this Court nor the Administration has the power to create citizens of children of ineligible foreign nationals simply because they were born before issuance of the Executive Order,” a brief by three constitutional and immigration scholars warns. “In other words, a prospective-only application is not possible.”
The idea might seem far-fetched, but the United States has a demonstrated record of stripping citizenship. As a brief from dozens of nonprofits dedicated to racial justice warned, the government specifically has a “long history of revoking the citizenship of racial minorities and women.” In just one example, after the Supreme Court held in 1923 that South Asians did not qualify as white and were thus incapable of becoming citizens because, at the time, naturalization was limited to Caucasians, the government began stripping citizenship from naturalized South Asian citizens.
The brief also warned that even if the federal government didn’t target anyone for citizenship-stripping, local governments and officials might embark on their own attempts to effectively denaturalize people by removing them from voting rolls and juries. The Trump administration is already encouraging voter roll purges on the false premise that noncitizens are skewing US elections. It’s entirely predictable that state and local officials would attempt to remove voters whom they deem non-citizens according to Trump’s order. This might be encouraged by the practical effect of striking Latinos and other racial minorities who might be expected to vote for Democrats. Jury pools could likewise grow whiter, reinforcing the white supremacy that the 14th Amendment and civil rights laws tried to end.
Supreme Court decisions change the country, but few are remembered for reordering American society. Dred Scott v. Sandford helped precipitate the Civil War by denying citizenship to all Black people; Plessy v. Ferguson blessed Jim Crow, which shaped American society for nearly 100 years; Brown v. Board of Education undid Plessy and transformed the country again. Trump v. Barbara threatens to be the next in this tradition of cases that determine whether or not we live in a multiracial democracy. As former University of Baltimore law professor Garrett Epps warned this week, “reinstating a hereditary, lifelong, inferior status” without political rights or welfare benefits “recreates the conditions for the growth of a racialized slave economy.”
America has been down that road before. No one will escape the consequences if the Supreme Court takes us there again.
