Recommendations of the Editorial team
After our daughter was born earlier this year, the nurse brought us a two-page form to apply for her birth certificate. The state of Wisconsin mailed us the certificate a few weeks later. A single checked box on the hospital form was enough for her to receive a Social Security number. With the birth certificate in hand, it was an easy step to apply for a US passport – because her birth on American soil proves that she is a US citizen.
That was the easiest part of having a child. If the Trump administration gets its way, these day-to-day operations will become significantly more complicated.
The Supreme Court will hear oral arguments on the matter on April 1 Trump v. Barbarathe legal challenge to Trump’s place of birth decree. The outcome of this process will affect more than just the citizenship rights of children of undocumented immigrants. It will also determine how all Americans can prove their citizenship.
Trump’s decree and its consequences
At the heart of the dispute is a decree that President Trump signed on the first day of his second term in office: It denies citizenship to children who are born in the United States but whose parents do not have permanent resident status. The decree seeks to overturn a long-held understanding of the Fourteenth Amendment—namely, that almost anyone born on U.S. soil is automatically a citizen. This principle has been in effect for over a century, since the Supreme Court decision of 1898 United States v. Wong Kim Arkas generally accepted. Lower courts have already stopped the decree; Now the judges are examining Trump v. Barbarawhether a president can arbitrarily reinterpret this rule via executive order.
The case raises practical questions: What exactly would enforcement of Trump’s executive order look like – and who would it affect?
First, imagine what it would mean for new parents to apply for federal identification documents for their child if this decree came into force.
Birth certificate is no longer enough
The form my wife and I filled out at the hospital would still secure a birth certificate for our daughter. But like most states, the Wisconsin birth certificate does not contain any information about whether the parents are U.S. citizens or permanent residents. Since the Trump administration no longer recognizes birth on U.S. soil as proof of citizenship, a birth certificate would not be sufficient if we wanted to apply for a passport or Social Security number for our daughter. We would have to prove to the federal government that we are citizens.
How could this be proven? The United States does not maintain a comprehensive national registry of citizens. This is precisely why federal agencies rely on birth certificates and other documents from state and local authorities. I was fortunate enough to travel internationally and could present my passport as proof of citizenship. For many other families this wouldn’t be so easy. Only about half of Americans currently have a passport, which costs several hundred dollars to apply for.
If you don’t have such a document that clearly proves your status, you may have to rely on circumstantial evidence – family photos or church documents, for example. As was common practice before the widespread introduction of birth certificates, government officials would then be entrusted with checking the credibility of these documents on a case-by-case basis. This would lengthen processing times and cause errors.
Social security and bureaucracy
Ask yourself honestly: When applying for a passport for your child, would you be confident that you could convince the Trump administration that you are a U.S. citizen?
The situation is even more delicate when it comes to social security numbers. Most Americans never think about applying for one because almost everyone receives their number shortly after birth through a process called enumeration at birth. The box I checked at the hospital triggered an automated process that sent my daughter’s information to the Social Security Administration.
The Trump administration has now announced that it will review this data in accordance with the place of birth decree – shaking up an efficient system that ensures an economic identity for every American.
The consequences of abolishing the place of birth principle will not only affect immigrants – under this policy it will be more difficult for all Americans to assert their citizenship rights. The Trump administration justifies the decree as protecting U.S. citizenship from unauthorized claims by children of undocumented immigrants and short-term visitors. But federal agencies don’t know in advance who falls into those categories. As a result, agencies will implement more burdensome procedures that burden everyone applying for federal documents or benefits.
Whoever falls through the cracks
Inevitably, many Americans will fall through the cracks. Children whose parents do not have a passport or who fail to gather supporting documents while caring for a newborn could find themselves without proof of citizenship. Those who never receive a Social Security number may experience obstacles in finding a job, receiving benefits, and paying taxes. Those who never get a passport risk being wrongfully arrested and deported by roving immigration authorities.
I am a native US citizen. My family has lived in this country for over a century. My little daughter was born in the heartland of America. We are probably not the intended target group of President Trump’s executive order. But if these policies come into effect, many people like us will have a harder time proving that they are entitled to the rights of citizenship.
In this sense, the decree is best understood not as an “immigration policy” at all. It has nothing to do with protecting national borders from perceived external threats. Rather, it is an attempt to undermine the protection of citizenship through bureaucratic means that question our belonging to the community.
Jacob Hamburger is a law professor at Marquette University. His work was featured in Supreme Court arguments Trump v. Barbara quoted.
