Could a Trump administration strip me of my birthright citizenship?
November 29, 2016 12:21 PM   Subscribe

Yes, I know there's strong Supreme Court precedent against it and it seems hypothetical now. But the current administration -- at least as far as I could tell -- would LIKE to revoke birthright citizenship. I know it's extremely implausible, but is it completely impossible?
posted by orangutan to Law & Government (19 answers total) 5 users marked this as a favorite
Not sure what you expect. Few things are completely impossible. I'd say it's improbable as it would require a constitutional amendment. Hang on to your documentation though, and keep it somewhere fire and theft proof.
posted by jeffamaphone at 12:23 PM on November 29, 2016 [7 favorites]

The issue is, how would they possibly do this without stripping birthright citizenship from everyone? My guess is if they do this, which I think is highly unlikely, it would be for people born at a future date. Trying to revoke citizenship from people who already have it seems far too complicated for Trump and his ilk to manage.
posted by shesbookish at 12:28 PM on November 29, 2016 [1 favorite]

Short answer: No, it's not completely impossible.

Slightly longer answer: There are so many things that are so much more probable and that will affect you directly and personally that it's not worth your time or effort to worry about this particular thing to the exclusion of other things, even other political things.
posted by Etrigan at 12:30 PM on November 29, 2016 [27 favorites]

It's not impossible but they would have to strip from everyone. Also, where would they send you? Other countries are not just going to take in people.

It's fair that this is a logical extension from some of the rhetoric the Trump team has been stirring up, but birthright citizens have much less to fear than undocumented immigrants.
posted by zutalors! at 12:48 PM on November 29, 2016

[Folks, general reassurances noted, but from here on out, let's stick to facts about what is legally possible/what would it take/ specifics about the powers of the President.]
posted by LobsterMitten (staff) at 12:53 PM on November 29, 2016 [4 favorites]

You might find this Times article interesting. Short answer: there are significant prior Supreme Court rulings that make it very, very difficult for the American government to strip citizenship, either birthright or naturalized. Revocation of citizenship is legally possible but the bar is set so absurdly high as to make it effectively impossible. That could theoretically be eroded by a future Supreme Court, but that's true of basically any law or right you could name.
posted by Itaxpica at 1:02 PM on November 29, 2016 [10 favorites]

The Congressional Research Service created a report in 2010 on "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents" which will answer many of your questions. The 14th Amendment says:
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.
It seems pretty cut-and-dry, but the report describes the wiggle room in "subject to the jurisdiction thereof". The author concludes that many proposals to use this to reduce the scope of birthright citizenship by purely Congressional action would be unconstitutional, but some would not.
posted by grouse at 1:13 PM on November 29, 2016 [3 favorites]

Stripping you of "citizenship" entirely is unlikely. What you're more likely to see are restrictions on exercising or proving your citizenship. For example, the State Department this year was given the authority to revoke the passport of anyone with "seriously delinquent" tax payments. H.R. 237, proposed last year, would authorize the revocation of passports for anyone who "the Secretary [of State] has determined has aided, assisted, abetted, or otherwise helped an organization the Secretary has designated as a foreign terrorist organization."

At the state level there may be similar restrictions imposed on obtaining other proof of citizenship (e.g., birth certificates) - in Texas last year, a federal judge approved the state's refusal to give birth certificates to children of undocumented immigrants (they reached a deal this summer that expands the acceptable parental ID, but it will still result in some children being denied birth certificates).

These laws/policies are happening at the same time Republicans are expanding voter ID requirements and passing "papers please" laws.

Your ability to continue exercising your citizenship will likely be dependent on your race, income, and political activities. Note also that the 13th Amendment (no slavery) does not apply to anyone in prison (highly recommend the Ava DuVernay doc on Netflix).
posted by melissasaurus at 2:37 PM on November 29, 2016 [2 favorites]

Considering that Trump has backed off on illegal aliens ("only criminals" I think is what he said on 60 Minutes), I don't see him spending the political capital to get a constitutional amendment through - and I'm pretty sure that's what the supreme court would tell him he needs.
posted by 445supermag at 4:25 PM on November 29, 2016

They would have to amend the constitution. That's incredibly hard to do politically because you need so much support, but yes, it's theoretically possible to do from a legal perspective.
posted by J. Wilson at 6:29 PM on November 29, 2016

Completely impossible.
posted by jpe at 7:16 PM on November 29, 2016

I don't know the details of your specific situation, but some conservatives have argued that the 14th Amendment never intended to convey citizenship on the children of those who were not permanent lawful residents of the US. Congress could pass a law based on that reading. It would be challenged, and eventually SCOTUS would render a verdict. Trump's going to have one SCOTUS nominee. If he gets two or more, this could be dicey. Reinterpreting the Constitution is much easier than amending it. Major reinterpretations happen from time to time, such as holding that the 2nd Amendment applies to individuals in the Heller decision or that there is an implicit constitutional right to privacy in Roe. Restricting birthright citizenship is unlikely to happen soon, but with the right alignment of SCOTUS justices and political climate, it absolutely could.
posted by Pater Aletheias at 9:11 PM on November 29, 2016

Theoretically possible. Already exists elsewhere in the world (I'm actually surprised no one's mentioned that). Already possible to renounce your own US citizenship by birthright, and already possible to lose it by choosing another in a country that requires you to have only one citizenship.

I'm not surprised Trump's mentioned it, it's a very popular policy proposal amongst right-wing candidates in Europe, to the point I predicted it was something he'd do (mentioned it in another AskMe here about what could happen to we Americans overseas).

Keep backup scans of your documentation, ideally on servers not in the USA. Yes, I'm being paranoid, but then just look at our president-elect. Keeping backups is the best you can do. Also, do note that statelessness is a thing the UN is working to end, and is strongly frowned upon in a legal sense. In other words, if you have a single citizenship, now THAT would be hard to take away.
posted by fraula at 2:36 AM on November 30, 2016 [1 favorite]

Already exists elsewhere in the world (I'm actually surprised no one's mentioned that).

For example in the UK, e.g. the case of Mahdi Hashi (a terrorist suspect who was stripped of his British citizenship - in order to extradite him to the US by depriving him of the privileges that British citizenship brings). I hesitated to mention it because the legal systems are so different, but as you raised it it's an interesting subject.

Theresa May, as Home Secretary, deprived 70 people of British citizenship for reasons ranging from fraud to not being 'conducive to the public good', so you can take that as some kind of baseline.

It would be more difficult to deprive birthright citizens than naturalised, but this is still a theoretical possibility for those who are also dual nationals. People who are only nationals of the UK and have that nationality through birthright are thus far secure, but of course things can change if Parliament (which is sovereign in the UK) were for some reason to decide otherwise.

The US I think has more explicit constitutional protections than the UK, but nonetheless where there is political will, there is a way. Laws can be changed, and constitutions can be changed.
posted by plep at 5:21 AM on November 30, 2016

Also possibly relevant U.S. revoked Anwar Al-Awlaki's passport six months before death (Politico). Awlaki was a US citizen who was born in New Mexico; he was also a Yemeni citizen, hence a dual national (so I think the point about dual vs single nationals stands. Nonetheless, as I understand it, he was a 'birthright' citizen through being born on US soil. Any US experts correct me if I am misunderstanding).

So, possible.
posted by plep at 5:46 AM on November 30, 2016

A note on Al-Awlaki: revoking a passport and revoking citizenship are legally two different things, and as mentioned upthread the state department can and does do the former already. Revoking a passport only removes freedom of travel, the other myriad legal protections that American law provides citizens still stand, and Al-Awlaki was still legally speaking an American citizen despite having his passport revoked.

Already possible to renounce your own US citizenship by birthright, and already possible to lose it by choosing another in a country that requires you to have only one citizenship.

This is touched on in the Times article upthread: the Supreme Court has found that naturalizing in another country that only allows one citizenship is not sufficient grounds to revoke an American's citizenship, even if that citizen renounced their citizenship in the course of the naturalization.
posted by Itaxpica at 1:10 PM on November 30, 2016 [1 favorite]

Ok, thanks for explaining that Itaxpica. So, following that and to take an example, Boris Johnson (who is American by virtue of being born in New York, and British by virtue of being born to British parents 'not by descent') could not really renounce his American citizenship even if he wanted to? I.e. an American born is an American always, even if they want to renounce?

Or is that different because he's British-born rather than British-naturalised?
Or are these untested waters?
posted by plep at 2:53 PM on November 30, 2016

It is possible to renounce your American citizenship, and roughly four thousand people a year do so (usually for tax reasons), but it's a fairly involved process that requires a bunch of paperwork and costs several thousand dollars - just saying "I renounce my US citizenship" doesn't cut it.

This article goes in to a whole bunch of detail on the process and law.
posted by Itaxpica at 5:46 AM on December 1, 2016 [2 favorites]

Thanks so much for all your answers, everyone.

It's not that I'm necessarily afraid for myself (though I am, for a million other reasons), I just wanted to know if it was at all possible, and if so, how.

There are definitely people who are going to be screwed over on the issues of living and belonging in this country -- way before I am -- and I think it's their rights we have to fight to preserve first.

Thanks again.
posted by orangutan at 10:26 AM on December 1, 2016 [1 favorite]

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