After our daughter was born earlier this year, the nurse brought my wife and me a two-page form to apply for her birth certificate. The State of Wisconsin sent us the certificate by mail a few weeks later. Simply checking a box on the hospital form ensured that she would receive a Social Security card. With our baby’s birth certificate in hand, it was then a simple process to request a United States passport, since her U.S. birth proves that she is a U.S. citizen.
This was the easiest part of having a baby. If the Trump administration gets its way, these common procedures will become far more complex to navigate.
On April 1, the Supreme Court will hear oral arguments in Trump v. Barbara, the legal challenge to the president’s birthright citizenship order. The outcome of this case will affect not only the citizenship rights of children born to undocumented immigrants. It will also determine how all Americans can prove their citizenship.
At issue is an executive order President Trump issued on the first day of his second term denying citizenship to children born in the United States to parents without permanent immigration status. The executive order attempts to overturn a long-settled understanding of the Fourteenth Amendment: that nearly everyone born on U.S. soil is a citizen. That principle has been widely accepted for more than a century since the Supreme Court’s 1898 decision in United States v. Wong Kim Ark. Trump’s executive order has been blocked by lower courts, and the justices will now consider in Trump v. Barbara whether a president can effectively reinterpret that rule through executive action.
The case raises practical questions about what enforcing Trump’s birthright executive order would actually look like — and who would be impacted.
First, imagine what it would look like for a new parent to seek federal identification documents for their child if this executive order were to go into effect.
The form my wife and I completed in the hospital would still allow our daughter to receive a birth certificate. But like most states, Wisconsin’s birth certificates do not contain any information about whether a child’s parents are U.S. citizens or permanent residents. Since the Trump administration rejects U.S. birth as proof of U.S. citizenship, if we want to prove that our newborn daughter is a U.S. citizen when seeking her passport or Social Security card, a birth certificate would not be enough. We would have to prove to the federal government that we are citizens too.
How could we prove that? The United States does not maintain a comprehensive national registry of citizens. This is precisely why federal agencies rely on birth certificates and other records created by state and local governments. I am fortunate enough to have traveled internationally, and so I could use my passport to prove my citizenship. For other families, this would not be so easy. Only about half of Americans currently hold a passport, which costs hundreds of dollars to request.
Without access to such a document that definitively proves a parent’s status, many Americans might have to rely on circumstantial evidence of citizenship, such as family photos or religious records. As was routine before birth certificates were in widespread use, government officials would then be charged with verifying whether these documents are credible in each case, which would likely delay processing times and lead to mistakes.
Ask yourself whether you are confident that you — if applying for your child’s passport — could convince the Trump administration that you are a U.S. citizen.
The situation is even worse when it comes to Social Security numbers. Most Americans never think about applying for one, because almost everyone receives theirs shortly after birth through a process known as “Enumeration at Birth.” The box I checked in the hospital set off an automatic process that transmitted my daughter’s information to the Social Security Administration.
The Trump administration now says it plans to audit this information in line with the birthright citizenship order, disrupting the efficient system that ensures an economic identity for every American.
The consequences of ending birthright citizenship do not only fall on immigrants — under this policy, all Americans will find it more difficult to claim the rights of citizenship. The Trump administration has justified the executive order as a way to protect U.S. citizenship against illegitimate claims by the children of undocumented immigrants and temporary visitors. But federal agencies do not know in advance who falls into these categories. As a result, agencies will adopt more onerous procedures imposing burdens on everyone seeking federal documents or benefits.
Inevitably, many Americans will fall through the cracks. Children whose parents lack passports, or who may forget to compile packets of supporting evidence while struggling to care for a newborn, may end up going without proof of citizenship. If they never receive a Social Security number, they may face obstacles in seeking employment, receiving benefits, and paying taxes. If they never receive a passport, they may be wrongfully subjected to arrest and deportation by roving immigration agents.
I am a U.S. citizen by birth. My family has been in this country for over a century. My baby daughter was born in America’s heartland. Presumably, we are not the intended targets of President Trump’s executive order. But if this policy goes into effect, many people like us will find it more difficult to prove that we deserve the rights of citizenship.
In this sense, the executive order is best understood not as an act of “immigration policy” at all. It has nothing to do with protecting the country’s borders against supposed outside threats. Instead, it is an effort to make the protections of citizenship more precarious, using bureaucratic procedures to undermine our claims of belonging.
Jacob Hamburger is a law professor at Marquette University. His work has been cited in the Supreme Court’s Trump v. Barbara arguments.
