The president’s challenge to birthright citizenship is more than unconstitutional, as the Supreme Court will probably hold—it’s crazy. Why? Because it would affect not just children born in the future—as it claims—but would threaten the citizenship of every living, native-born American, whether aged 25, 50, or 75. It would also mean that a U.S. birth certificate would be inadequate to prove American citizenship, thereby becoming almost useless.
How can this be? It is all about two words: “prospective” and “retrospective.” The executive order may be “prospective,” but the Constitution of the United States is not.
The President’s Executive Order, by its own terms, is “prospective,” meaning a rule that applies for the future. Its rule—that a child born in the United States is not a U.S. citizen unless at least one parent is a U.S. citizen or lawful permanent resident—applies 30 days after the Executive Order becomes effective.
That is what “prospective” means—applying only in the future.
But citizenship is defined in the Fourteenth Amendment to the Constitution (“born in the United States and subject to the jurisdiction thereof”), and the Constitution is “the supreme law of the land.” Therefore, the birthright citizenship executive order is valid only if the Constitution also rejects birthright citizenship. That is why the administration argued before the Supreme Court earlier this term that there is no birthright citizenship.
But—and here’s the rub—the Constitution is not “prospective,” but “retrospective,” that is, applying to past events and to present consequences of past events.
Put in simple terms, Trump’s executive order may claim to reject “birthright citizenship,” only for the future, but if the Constitution rejects “birthright citizenship,” it rejects it for the past, present, and the future. It would reject it for everyone—you, me, and every person born in this country.
What would this mean? Today, there are 300 million U.S. residents born in this country. Many or even most would probably still be American citizens under the no-birthright rule, but our birth certificates would not be enough to prove it. Citizenship would depend on proving that one’s parents were citizens, for which their own birth certificates would not be sufficient. And on and on, perhaps for generations back.
This idea would wreak havoc on our voting rolls. Most voters prove their eligibility by showing their U.S. birth certificates, but that would no longer work. They would need their parents’ birth certificates as well, and possibly documentation for multiple generations. The President’s proposed SAVE Act, which relies mostly on birth certificates and passports, would also be pointless. Beyond voting, the decoupling of birth certificates and U.S. citizenship could have undreamed-of baleful consequences.
One might seek solace in the Supreme Court’s having, in some cases, given new constitutional rulings a “prospective-only” application. Still, those have typically involved new criminal procedure rules that the Court ruled did not apply to existing convictions and sentences. No principle could create a Constitution different for me than for my descendants. Therefore, we’re all in peril.
One may wonder why these points have not been front and center in the arguments over the executive order and birthright citizenship. Rest assured, if the Supreme Court upholds the executive order as the term comes to an end and rejects birthright citizenship, which is doubtful but hardly inconceivable given this Court, the result could be a national cataclysm beyond anyone’s imagination.
