When President Trump signed an executive order in January attempting to end birthright citizenship, critics quickly pounced, criticizing the action on both legal and moral grounds.
But lost in the punditry is a glaring question: What happens if this actually takes effect?
The answer: chaos. State health departments and the Social Security Administration would be thrust into the role of immigration enforcers. Birth certificates — currently automatic and routine — would become complex adjudications. And hundreds of thousands of babies born on American soil each year could be left in limbo.
Until now, the U.S. has followed a simple rule: With few exceptions, if you’re born here, you’re a citizen. The law is clear. The 14th Amendment to the Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Courts and legal scholars have consistently interpreted that language to include children born in the U.S.
The Supreme Court decided this issue over 120 years ago, in an 1898 case called Wong Kim Ark. The court ruled that a child born in San Francisco to Chinese parents was a U.S. citizen, even though his parents were barred from becoming citizens under the laws of the time.
Birthright citizenship is one of the few unambiguous principles in our complex immigration system. Trump’s executive order would change that. Only children with at least one parent who is a U.S. citizen or green card holder would qualify automatically. Even babies whose parents are here legally on temporary visas — such as students or H-1B workers — could be denied citizenship.
Though courts have temporarily blocked Trump’s executive order, federal agencies are quietly preparing to implement it. The Social Security Administration has already drafted guidance: birth in the U.S. would no longer be enough to get a Social Security number. Parents would have to prove their immigration or citizenship status.
This wouldn’t just be a paperwork problem. It would create a logistical and legal nightmare.
States would need to overhaul birth registration forms and retrain staff. Parents might have to show up in person at Social Security Administration offices with relevant documents, which people many don’t have. Fewer than half of Americans have valid passports. More than 21 million don’t have proof of citizenship readily available. How exactly are they supposed to prove their baby’s right to be American?
Depending on the case, vital records offices would be stuck coordinating with Citizenship and Immigration Services, Customs and Border Protection and even Immigration and Customs Enforcement. Every birth would trigger a miniature immigration case. We’d essentially need a new federal bureaucracy to adjudicate the citizenship of newborns.
This would be the biggest expansion of federal red tape in decades — ironic for an administration claiming to shrink government. And it would impose massive unfunded mandates on states, especially in rural areas already starved for resources.
Even worse, we would be creating a new underclass. The Migration Policy Institute estimates that repealing birthright citizenship would increase the undocumented population by 2.7 million by 2045 and by 5.4 million by 2075.
Each year, more than 250,000 babies could be born without a country. That’s not policy. That’s a pipeline to alienation and statelessness.
Yes, statelessness is a real risk. Not all countries automatically grant citizenship by birth. If the U.S. refuses citizenship and the parents’ home country doesn’t grant it either, the child is stuck.
Ireland has faced this exact crisis. A nine-year-old boy born in Dublin, the child of a Chinese mother, was threatened with deportation because, thanks to a change in Irish law, he had no legal nationality.
What would we do with thousands of stateless children born in U.S. hospitals? Who would be responsible for them? Trump’s executive order doesn’t say. That should terrify us.
Stripping birthright citizenship is a radical break from more than a century of settled law and common sense. It won’t fix America’s immigration system, but only inject dysfunction into the simple act of being born.
Congress must step up. A broken immigration system can’t be mended with executive orders. Only lasting legislative reform can do that. Until then, both the courts — and the public — must reject this dangerous, unworkable idea.
Repealing birthright citizenship doesn’t just violate the Constitution. It violates our values, our institutions and our basic common sense.
Let’s leave this awful idea where it belongs — in the dustbin of history.
Stephen Yale-Loehr is a retired professor of immigration law practice at Cornell Law School.
