If the definition of citizenship is changed by executive order, there is nothing to prevent Trump or any other president from defining citizenship anyway they choose, writes Margaret Kimberley.
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By Margaret Kimberly
Black Agenda Report
“I‘m just saying if we had the legal right to do it, I would do it in a heartbeat. I don’t know if we do or not, we’re looking at that right now.” – Donald Trump on sending U.S. citizens convicted of crimes out of the country.
The idea of citizenship has always been a thorny one for Black people.
The original United States Constitution allowed the enslaved to be counted for purposes of determining congressional representation, but only as three-fifths of a person.
The struggles for liberation during enslavement reached their nadir in the 1857 Supreme Court case of Dred Scott v. Sandford, in which not only were an enslaved man and his family wrongly deprived of their freedom, but Chief Justice Roger B. Taney infamously declared that not only were the Scotts not free, but that no Black person had any rights “which the white man was bound to respect.”
A remedy that resolved the issue of Black citizenship was found in the 14th Amendment, one of three post-Civil War constitutional amendments that impacted the formerly enslaved.
Ratified in 1868, the 14th Amendment has four clauses, the first of which states,
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The amendment also guarantees due process and equal protection under the law and bans those who fought against U.S. government forces in the Civil War from holding office because they “engaged in insurrection or rebellion.” The clause pertaining to birthright citizenship has been the most contentious source of debate.
All of the reconstruction era constitutional amendments were either under attack from their beginnings or, in the case of the 13th Amendment, harmful by definition.
Oil on canvas portrait of Dred Scott by Louis Schultze, 1888. (Missouri History Museum/Wikimedia Commons/Public Domain)
The 13th Amendment ended involuntary servitude, “except as a punishment for crime whereof the party shall have been duly convicted,” and allows for slave labor in U.S. prisons to this day.
The 15th Amendment guaranteed that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
This amendment was undermined immediately after ratification and was not protected until 1965 when the Voting Rights Act was passed.
But, in 2013, the Supreme Court’s decision in the Shelby County v. Holder case ended the Act’s preclearance provisions, which provided protection against discriminatory practices.
Trump’s Executive Order
It is important to remember this history in light of the continued effort by Donald Trump’s administration to redefine birthright citizenship and a recent U.S. Supreme Court decision regarding the January 2025 Executive Order, “Protecting the Meaning and Value of American Citizenship.”
The order states that the U.S. government will not accept or issue documentation proving citizenship to anyone unless one or both parents are citizens or permanent residents.
[See: US Supreme Court Affirms the Imperial Presidency]
This change may seem inconsequential until one considers the ways that Black people could be deprived of citizenship rights. If there is any group who do not have birthright citizenship, then no one has it. Any changes would apply to everyone in the country and would permit unknown changes in the future, which could further modify the definition of citizenship.
Should the executive order go into effect, the birth certificate, which guarantees citizenship, would guarantee nothing without additional documentation proving that the parents were citizens or permanent residents. Such new documentation requirements would be easy for some to obtain but difficult for others.
The situation is further complicated by the fact that states issue these documents, not the federal government, and there will inevitably be different rules depending upon where births take place.
Many Black people believe that birthright citizenship should be changed because immigrants, even those of short duration in this country, are born with the same rights as those whose families have been here for generations.
Trump himself has said of the 14th Amendment, in his typical inelegant fashion, “It was for the slaves.”
He is correct. The 14th Amendment did undo the 1853 Dred Scott decision, which deprived all Black people of citizenship. But Black people must always be wary and think ahead, as our enemies may be doing.
14th Amendment sign at the entrance of the Brown v Board of Education Historical Site in Topeka, Kansas. (Shutterbugsage/Wikimedia Commons/CC BY 3.0)
Once any changes to the understanding of birthright citizenship are made, there is a possibility of persons, particularly from marginalized groups, becoming stateless.
There are people who don’t have ready access to birth certificates, or in the case of a Black woman in Texas who has a birth certificate listing her name only as “Girl” and who, as a result, cannot obtain a Social Security card or prove her citizenship. No one knows how many other people find themselves in such situations.
If the definition of citizenship is changed by executive order, there is nothing to prevent Trump or any other president from defining citizenship by whatever means they might choose.
In the case of sending U.S. prisoners out of the country to be incarcerated, there is a simple solution to what Trump says he would do, as he put it, in a heartbeat. It is possible that he or a future president could declare incarcerated people as non-citizens.
If birth in the U.S. no longer guarantees citizenship, the whims of presidents could give and take away. What was once unthinkable could be made possible with the stroke of a pen.
In the immediate aftermath of the executive order, injunctions were filed in federal courts, and three of these cases, Trump v. CASA, Trump v. Washington, and Trump v. New Jersey, were consolidated into one and were heard before the Supreme Court.
In a 6 – 3 ruling on June 27, the justices concluded that universal injunctions exceed the power of federal courts unless they are necessary to vindicate the rights of the parties who filed the lawsuit. As a result, lower courts in each of the consolidated cases must determine the proper scope of the injunction issue.
It is possible that in 30 days, the executive order may go into effect in certain parts of the country. Trump’s executive order doesn’t exempt anyone, which means that the descendants of the enslaved people that he claims to care so much about may not be able to prove citizenship.
It must be said that Trump’s determination to end birthright citizenship aligns with the opinions of many Black people who, for many years, have expressed a desire to end birthright citizenship.
Those views correlated with growing immigration numbers and the prosperity of some newcomers, while Black people languished in every data point from income to home ownership to educational attainment.
It is a supreme irony that Trump’s dream of decreasing its non-white immigrant population is seen as positive by Black people, although not for the same reasons.
History and discernment must be the guides. There is little evidence that restricting birthright citizenship will keep new immigrant groups from prospering. In fact, new procedures carry a high risk of undermining the rights of Black people.
There may be satisfaction if immigrants aren’t automatically citizens by birth, but what will the outcomes be should new procedures and unknown decisions in the future undermine a hard fought right for Black people in this country?
The old saying which warns against cutting off one’s nose in order to spite the face, should be kept in mind. The system that has undone so many legal protections should not be trusted now.
Margaret Kimberley, Black Agenda Report’s executive editor and senior columnist, is the author of Prejudential: Black America and the Presidents. You can support her work on Patreon and also find it on the Twitter , Bluesky , and Telegram platforms. She can be reached via email at margaret.kimberley@blackagendareport.com.
This article is from Black Agenda Report.
The views expressed in this article may or may not reflect those of Consortium News.
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It will take some serious linguistic gymnastics for this court to change the plan meaning of “subject to the jurisdiction of the United States.” But stranger things have happened. A point often omitted in this discussion is how the 14th Amendment radically changed the notion of citizenship for all Americans.
Prior to 1868 most people experienced citizenship at the state level. That’s where laws were enforced, taxes were paid and most voting took place. While the Bill of Rights, both then and now restrained the federal government to protect individual rights, there was very little federal action to be projected from.
In contrast, your state passed many laws that touched thier citizens. The 14th Amendment changed that. It elevated national citizenship apart from whatever the state might be doing and began a hundred year process of redefining what it meant to be a citizen of the United Sates.
Section 5 empowered the congress to act to support the protections of this new national citizenship. It effectively overruled Dred Scott which declared that African Americans were never considered part of the American body politic and began a process that eventually culminated in the application of the Bill of Rights protections to the states.
Subject to the jurisdiction thereof meant subject to both the requirements of federal law, but also to their protections. There’s no evidence in the debates over the 14th Amendment that the authors never included children of “illegal immigrants” in that formulation. If they were born in America, that fact alone triggered all its protections.
The conservative argument is that since they weren’t considered. then they weren’t included or intended to have birth right citizenship. There’s a latin term on statutory construction that I can’t remember, but basically it means that if you use terms like “fruit” you don’t have to say this includes apples and oranges.
But Ms. Kimberley is right to be cautious. For if conservatives can carve out an exception for the children of “illegal immigrants” based on that legal status alone, then what about the children of convicted felons? Or the children of parents with duel citizenship? Or a child born in the US but transported abroad and living under the laws of a foreign state?
Once Pandora’s box is opened the demons may very well come out. A little constitutional public education is definitely in order.
It could get worse, now we may have to define person-hood soon too. We have have to determine where someone was conceived to define citizenship then voting rights so the mother/father may each get a 60% vote added to their own for the unborn person depending on divorce and DNA testing.
Plus a religious group may conceive of asylum to encourage young couples to flood a country with newborn citizens so as to expand on the demographic control of the Supreme Court and religious freedom for their asylum promoters who may demonize people as a way to reject vampires from voting right