Front Burner - The end of birthright citizenship?

Episode Date: July 2, 2025

For at least the last decade U.S. President Doanld Trump has discussed his desire to end the practice of birthright citizenship. On his first day back in office Trump passed an executive order looking to exclude the children of undocumented people from birthright citizenship completely: an action that was immediately challenged in lower courts across the country. Last week, the U.S. Supreme Court delivered Donald Trump a major victory, limiting the power of lower courts to challenge the President’s executive actions. Isabela Dias is an immigration reporter with Mother Jones, and has reported extensively on birthright citizenship. She joins the show to discuss the impact of the Supreme Court's decision, Trump’s changing definition of ‘citizen,’ and what the end of 160 years of birthright citizenship would mean for all American citizens. For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcripts

1942, Europe. Soldiers find a boy surviving alone in the woods. They make him a member of Hitler's army. But what no one would know for decades, he was Jewish. Could a story so unbelievable be true? I'm Dan Goldberg. I'm from CBC's personally, Toy Soldier. Available now wherever you get your podcasts. This is a CBC Podcast. I'm Elaine Chao, in for Jamie Poisson. Last week, the U.S. Supreme Court delivered Donald Trump a major victory in his war on birthright citizenship.

It curbed the power that lower courts had to use nationwide injunctions to block executive orders, like the one Trump put in place to limit the practice at the start of a second term. Birthright citizenship basically means that if you're born on U.S. soil, you are American. It doesn't matter where your parents are from or what their citizenship status is. And for at least a decade now,

President Donald Trump has openly talked about wanting to end the practice, even though it's widely considered to be settled law. The right was codified into the 14th Amendment of the U.S. Constitution nearly 160 years ago, designed to enshrine the citizenship of Black Americans who until that point were not legally permitted to be considered full citizens. But Trump views birthright citizenship as a shortcut for undocumented immigrants to gain protected legal status for their families. He's referred to children born to undocumented people as, quote, anchor babies, and their parents as birth tourists. Isabella Diaz has reported extensively on birthright citizenship.

She's an immigration reporter with Mother Jones, and she's here to explain the potential impact of the Supreme Court's ruling, where it goes next, and what the potential end of birthright citizenship would mean for all American citizens. Hi, Isabella. Hi, it's good to be here. So you open one of your stories on birthright citizenship with this scene of Donald Trump and former Fox News host Bill O'Reilly debating the merits of birthright citizenship. This is all the way back in 2015. ...thing with anchor babies and the concept of anchor babies.

I don't think you're right about that. I can quote it. You want me to quote you in the amendment? If you were don't think you're right about that. I think it's going to be proven that you're wrong. I can quote it. You want me to quote you the amendment? If you were born here, you're an American. Period. Period. But there are many lawyers, many lawyers are saying that's not the way it is in terms of this. We have to start a process where we take back our country. Our country is going to hell. We have to stop. And what do you think that exchange says about how Trump sees the issue of

birthright citizenship? Yeah, on that occasion, Trump then presidential candidate, he was making very clear where he stands on the issue of birthright citizenship. And his view is that automatic right to citizenship that is guaranteed in the 14th Amendment of the Constitution, it shouldn't extend to the U.S. born children of undocumented immigrants. And that exchange with O'Reilly is very interesting because you can see that O'Reilly is, he can't quite believe that Trump is making that point because it's, you know, the 14th Amendment is so clear about the fact that virtually everyone born on American soil is granted citizenship and Trump keeps pushing it and basically, you know,

saying that he thinks that if this was to go before the courts, that the courts would side with him, that there are many lawyers who agree with his view that birth rights and citizenship should be restricted for the children of certain immigrants. And of course, at the time Trump was running a campaign that was not unlike his most recent one, very much cracking down on immigration. And he certainly talked about birthright citizenship in the way as something that would serve as a magnet for more unlawful immigration into the country. And he wanted to quash that.

And do you envision federal police kicking in the doors in barrios around the country, dragging families out and put them on a bus? Do you envision that? Bill, I don't think they have American citizenship. And if you speak to some very, very good lawyers, and I know some would disagree, but many of them agree with me, you're going to find they do not have American citizenship. On the very first day of his second administration,

Trump issued an executive order intended to end birthright citizenship outright. And can you walk me through just terms of that executive order and what it was trying to accomplish? So yeah, on his first day in office, President Trump signed his executive order and he was called protecting the meaning and value of American citizenship. And it is, in effect, an effort to basically reinterpret the 14th amendment of the Constitution, which of course he doesn't have the power to do with the stroke of a pen. He would have to amend the Constitution in order to completely strip birthrights and citizenship away. And in practice, this executive order denies automatic citizenship to the US-born

children if the mother is an undocumented immigrant or a temporary visa holder, so someone who might be on a tourist visa or even a work visa, and unless the father is a legal permanent resident or a US citizen. And it's, you know, the executive order is not very long. It's not entirely fleshed out how in practice, what steps the administration would take in order to turn that into enforceable policy. But it does instruct the leaders of, the leaders of the Department of Homeland Security, the Department of State, other federal agencies to essentially start taking steps towards making sure that their internal policies and regulations are aligned with the executive

order and the president's interpretation of the 14th amendment. So that can look like federal agencies stopping the issuances of citizenship documents, things like birth certificates or passports to the children of certain immigrants. The judges in a number of different states really very quickly responded to all this with nationwide injunctions that were meant to stop the executive order from going into effect. Can you walk me through kind of on what basis they were filing these injunctions? What was the case that they were making?

I should also say the executive order wouldn't apply retroactively, which was a question that came about when he first announced it, but it would apply to children being born in the United States after February 19th. But yeah, the executive order immediately prompted legal challenges right away, as it was expected.

Several plaintiffs, including pregnant mothers, civil rights groups, and 22 states, sued in federal courts. They sued in Maryland, Massachusetts, and Washington state. And basically they all argued that the executive order violates the 14th Amendment of the Constitution and as well as the Immigration and Nationality Act. And they asked the courts, the federal courts to block the administration from implementing the executive order, restricting birthrights and ship while the litigation continued. And then what happened was that all of the three district courts found that the executive

order was likely to be found unlawful and they all issued preliminary injunctions stopping the administration from carrying out the policy nationwide. And, you know, some of the judges' rulings were very forceful in, you know, in showing that they thought that this policy was unlawful. So for example, a federal judge in Seattle called it blatantly unconstitutional. Later, another judge in Maryland said the executive order conflicts with the plain language of the 14th Amendment and contradicts years of Supreme Court precedent.

And then one thing I think it's important to point out is that the case that arrived before the Supreme Court was on paper about birthright citizenship and this executive order, but the justices weren't looking at the question of the merits of the case, meaning, you know, whether the executive order is constitutional or not. Instead, they were assessing a narrow issue, a procedural question, I should say. And that is because the Trump administration appealed those preliminary injunctions that had been issued by the three different courts.

The administration wasn't trying to argue for the legality of their executive order, which they probably know is very tenuous at best and will likely be a losing battle moving forward. So instead, they decided to strategically ask the appeals court to narrow the scope of the injunctions that the judges had issued and try to be able to implement the executive order, at least partially, outside of the states that had been suing. No longer will we have rogue judges striking down President Trump's policies across the entire nation. No longer. Today in the 6-3 opinion,

Justice Barrett correctly holds that the district court lacks authority to enter nationwide or universal injunctions. Judges have used these injunctions to block virtually all of President Trump's policies. And do you expect the Supreme Court to address the question of birthright citizenship head on at some point down the line? It seems like certainly the Trump administration seems to expect that that might happen and maybe even as early as the fall term. Attorney General Penn Bondi was talking about how that should come at the forefront again soon. What is the plan now? Are you going to try to implement the EO just in states where there isn't a legal challenge? Yes, so birthright citizenship will be decided in

October in the next session by the Supreme Court unless it comes down in the next few minutes. And of course, it's really hard to anticipate what cases the justices might take on or how they would rule in an eventual case like that. But I think there were some hints from this decision in this case where they reached into their emergency docket and they made a very rare move, which was to grant oral arguments in an emergency docket case like this, which I think says a lot about how important and critical they think that this case is and the underlying

constitutional question is. And also, although the majority of the justices didn't really, you know, they didn't really go into the merits of the case, some of the dissenting justices definitely went there and made a point of reaffirming their conviction that the executive order is unconstitutional in light of the 14th Amendment. Before we kind of go into kind of the impact of the ruling, I just want to loop back to, you know, we spoke earlier a bit about the case that those who are challenging the order have made, like on what basis they were making their injunctions.

I just want to look at the flip side of that and like what is the Trump administration's argument, like its legal justification around this? You know, I'm thinking that, you know, obviously the 14th Amendment has been settled law for much of the last two centuries in the U.S. And I'll just read it in part, all of the last two centuries in the US. And I'll just read it in part, all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. That seems fairly foolproof. So like what is it that changed? Yeah, it's, I mean, it's really interesting that this has come to that point, because like you said,

it is, you know, most constitutional scholars and legal experts and historians in this country believe that this is a matter of settled law and that the meaning of the 14th Amendment is very clear and it's meant to be this broad principle that doesn't exclude on the basis of parentage or ancestry and heritage. But there has long been part of a conservative legal movement that believes that either the 14th Amendment should be reinterpreted. And they focused specifically on that clause, the citizenship clause, which is the first one in the amendment, and particularly the line about being subject to the jurisdiction of the United States. And, you know, those legal scholars and certainly lawyers who have been associated

with Trump and within the Trump administration now, they basically argue that that clause doesn't extend to the children of undocumented immigrants, particularly because if they are undocumented, it means that they came into the United States, they probably broke laws and therefore they aren't subjected to the laws of the country and therefore their children should be excluded from automatic citizenship. I'm Sarah Trelevin and for over a year I've been working on one of the most complex stories I've ever covered. There was somebody out there who was faking pregnancies. I started like warning everybody. Every doula that I know. It was fake.

No pregnancy. And the deeper I dig, the more questions I unearth. How long has she been doing this? What does she have to gain from this? From CBC and the BBC World Service, The Con, Caitlin's baby. It's a long story. Settle in. Available now. I want to talk a bit more about the impact of the ruling so far.

So I know that there is a 30-day hold on the decision. And of course, there are, as you pointed out, ongoing legal challenges to the executive order in, I believe, 22 states with democratic leadership. And does that mean that there isn't an immediate nationwide impact that we're seeing? It's so yeah, I think one of the most important things to keep in mind is that this executive order won't go into effect until 30 days after the Supreme Court ruling. So that will be, you know, not until July 27. However, the majority ruling did open the way for the Trump administration to resume taking steps to figure out guidance and policies and how they're going to effectively implement

the order, which, you know, would only be applied outside of those 22 states and also wouldn't impact the individuals who are actually covered by the injunctions. I think some of the justices' dissenting opinions on this, they were very telling about what they think that this will lead to, Justice Sonia Sotomayor, for example, said that this will likely lead to a lot of chaos and a kind of patchwork system where children who are born in certain states will have certain rights, while if you're born in another state, you might not be entitled to the same protections and guarantees. And I guess we will see how that will play out in practice moving forward.

Right. Like, for example, like in states that haven't challenged Trump's executive order, like could babies born to immigrants without full legal status essentially be left stateless. Is that a possibility? Yeah, I mean, that's something that is definitely a possibility. We are talking about children who could effectively not have a citizenship and become stateless. And if they are not, you know, that's a case where if they are not eligible potentially for citizenship based on the rules of their parents' countries. And, or for example, you know, if for in the case of asylum seekers, or more specifically, even Venezuelan asylum seekers who don't have a consulate or an embassy to go to in the United States to even get a passport. So there are so many potential ramifications of this.

And I think one of the big ones, of course, is these children would potentially be vulnerable to deportation if they have no status in the country. And that could also mean that they would be separated from their parents if the parents have the right to remain in the country and the child doesn't. There are other ways in which we might see the ripple effects of this. Children born in states where this would go into effect might not be eligible for certain public benefits like SNAP or Medicaid. Yeah, that would essentially all be determined on the basis of which state they were born in. And you could even see potentially pregnant women moving from a state to another

state to give birth so as to give their child a better chance at being recognized as a U.S. citizen with full rights. I would imagine that enforcement here is also something to think about. What kinds of government systems would be needed to enforce this kind of new vision of citizenship, you know, would this mean that people would need to, you know, carry proof of their parents' immigration status, for example? Yeah, I think that's, you know, certainly a big question. Right now, how that will be felt is certainly, you know, in my reporting, I talked to a lot of historians of birthright

citizenship and experts who, you know, talked about potentially, you know, people going into the hospitals and to deliver their child and then, you know, a birth certificate is no longer going to be enough to prove that child's citizenship, you're going to have to bring documents as to the parents' legal status and citizenship. And we know that many Americans don't have, for example, U.S. passports or they don't have birth certificates. So this will create all sorts of you know, bureaucratic issues, of course, but also it's still a little unclear in what other ways the administration will enforce this executive order at this point. I want to spend a bit of time talking about the history of birthright citizenship, what it represents, what would happen if that right was taken away. And as we mentioned earlier, like the 14th Amendment was really a response to a Supreme Court decision in 1857. And what can you tell me about how birthright citizenship started?

And how we've seen it defined and expand the definitions of American citizenship over the years? So birthright citizenship actually goes even further back. It goes back to English common law and this principle of jus soli, which essentially means citizenship by place of birth. That was an English common law and it carried over to the United States after the founding of the country. When we think about like what the United States was like at the time, the Supreme Court in 1857 issued this infamous decision, one of their worst in history, in the case called Dred Scott, and the justices affirmed that Black Americans could never be citizens of the United States. So it was in direct response to that decision that after the Civil War, the Reconstruction,

Congress passed the Civil Rights Act of 1866 and then two years later ratified the Fourteenth Amendment of the Constitution. So the Fourteenth Amendment was effectively enacted as an effort to guarantee certain rights for African Americans, right? In overturning the Supreme Court ruling in Brad Scott and enshrining the birthright citizenship in the Constitution, the lawmakers at the time, they had a goal to effectively change American citizenship from what was a race-based tiered system to one where essentially anyone born here automatically becomes a citizen with all the legal rights that comes with it and regardless of, again, their parents' heritage. So I think, you know, in other words, the 14th amendment played a monumental part in fostering equality in a country of formerly enslaved people. And it is, it has remained a bedrock principle of this nation and an important part of addressing the legacy of slavery in the United States.

I should also say that a lot of the, you know, some of the plaintiffs in this case, but as well as just historians of birthrights and ship have certainly noted that in his active order to abolish birthrights and ship essentially would take us back to that race-based two-tiered system of the Dreadscot era, where you have a subclass of potentially generations of children who were born in the United States only to not be full citizens of the country. LESLIE KENDRICK-KLEIN Listening to you talk about the history of birthright citizenship, I can't help but think about how throughout American history, certain groups have been considered outcasts or pariahs, considered lesser than.

And we've seen the law bend to strip or challenge the citizenship of even American citizens who are perceived that way, you know, whether they be black, Japanese, Chinese, Mexican, Arab. And have you heard concern from people that you've spoken to about how, you know, given the push to end birthright citizenship, that what we're seeing could be the start of a project to strip the citizenship of people considered unfavorable or inconvenient to the U.S. government. Yeah, I think this certainly could be a kind of Pandora's box. we are already seeing the Trump administration take certain steps to denaturalize citizens who have been convicted of certain crimes. Recently there have been reports of the Department of Justice instructing their lawyers

to make this a priority, to strip away citizenship from naturalized citizens on a large scale, and expanding the criteria of crimes that people may have been convicted of that would justify taking away their citizenship. And I think in my reporting, it certainly came up that this attack on birthright citizenship coupled with a project of denaturalization,

which is something that Stephen Miller, who is the Homeland Security Advisor and White House Deputy Chief of Policy in the Trump administration, he has definitely hinted at that, at that being something they would want to pursue, that those things combined could be a prelude for mass removals,

which is again also one of the Trump administration's main policies. Trump often talks about how the U.S. is, quote, the only country in the world that grants citizenship on the basis of birth within its borders. But the fact is nearly all countries in the Western Hemisphere have some version of birthright citizenship. American presidents and leaders have long talked about the U.S. as a kind of sanctuary. You know, George Washington said that the US was, quote, open to receive not only the opulent and respectable, but the oppressed and persecuted of all nations. And, you know, what would taking away something like birthright citizenship, rights citizenship more than nearly 160 years after it was enshrined, what would that mean for American national identity and how Americans see themselves and their country?

I think most people would agree that abolishing or restricting birthright citizenship would be a seismic change to the very fabric of the United States. Like I said, it's been a bedrock principle of what it means to be an American and being born on US soil effectively makes you an American soul. It's, you know, of course, the the practical implications that we have discussed, they are incredibly important and potentially harmful. But I also think that there is this this element that of like what it actually says about the country and I think more importantly, the vision for the country that is coming out of the White House, which I would argue based on, you know, certainly this, but other policies that they are putting forward, that it's an exclusionary vision, a vision that doesn't account for immigrants and certain, you know, groups based on nationality and people of color. And it's also not an isolated,

like specifically American trend, I guess. You know, we are seeing many countries kind of roll back their more generous birthright citizenship policies in recent years. And I think that is all kind of indicative of the moment that we are living in, where there is heightened anti-immigrant sentiment and a perception that too much immigration is changing the identity of the nations and that it's not beneficial to countries. And that certainly seems to be kind of a global trend that we are currently seeing.

Isabel, thank you for your time today. Really appreciate your reporting and your insight. Thank you. That's all for today. I'm Aline Chow. Thanks for listening to Front Burner.