President Donald Trump has announced that he plans to strip many Americans of their legal citizenship by executive fiat, specifically targeting children born in the United States to undocumented immigrant parents. Such a move would immediately run afoul of the United States Constitution, as well as a federal judiciary whose fringiest right-wing judges have never cottoned on to such a radical revision of the Constitution’s 14th Amendment.
Nevertheless, tearing down the infrastructure by which many immigrants become legal citizens is a long-standing goal of the Trump administration. Now, it’s part of its midterm election campaign.
As with many of Trump’s schemes, it is not clear that the president has a particularly good grasp of the material facts. For example, in his interview with Axios, Trump maintained that the United States is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.” This is not true. More than 30 nations, including our neighbors to the north and south, observe unrestricted jus soli — or “right of the soil” — allowing anyone born within their borders to claim the rights of either citizenship or nationality. More than 20 others permit some form of birthright citizenship within restrictions.
But concern over the president’s relationship to the facts may be beside the point. As an actual attempt at policymaking, such an executive order may be dead in the water. It may be better to view Trump’s announcement within the context of next week’s midterm election, where fearmongering about immigrants of all stripes have been an essential part of his — and, by extension, the Republican Party’s — closing argument.
However, it is just as important to recognize that Trump’s announcement, no matter how ill-informed and unlikely to succeed as it may be, is not something that arrived from out of the blue this week. While many of Trump’s more noteworthy attacks on immigrants have targeted either undocumented or peaceful asylum seekers and refugees, the Trump administration has a consistent track record of singling out legal immigrants for particular animus as well.
When you have little to show the voters
Were Trump not able to pivot to baselessly fearmongering about immigrants, it is hard to say what, if anything, his midterm message would be. The Republican tax plan has been unpopular for the bulk of this year, so much so that GOP candidates have more or less stopped running on the Republican-controlled legislature’s most significant accomplishment, leaving Trump to desperately promise some new tax cut by the end of October, which is Thursday.
Another signature endeavor of Republican legislators, the gutting of Obamacare, has been a similar non-starter. GOP electeds have failed in their numerous attempts to “repeal and replace” the former president’s signature health care law throughout the first two years of Trump’s term. Over that same period of time, Republicans have watched public favor of the Affordable Care Act grow to heights it never enjoyed during President Barack Obama’s tenure. Now, Republicans on the stump are working overtime to obscure their past, telling voters that they are forthright champions of maintaining protections for patients with pre-existing conditions — despite having voting records that say otherwise.
Even Trump’s biggest accomplishment of the past year, the successful confirmation of Supreme Court Justice Brett Kavanaugh, seems to be galvanizing the Democratic base alongside the president’s own. And so, playing on nativist fears of immigration seems to be the only card left to play.
But as of this week, the Trump administration’s efforts to pander to those fears are no longer limited to “the brown people are coming,” to borrow from the Daily Beast’s Michael Tomasky. Trump’s plan to strip legal citizens of their citizenship now expands that argument to “The brown people are here.”
A steady war against legal immigrants
However, Trump’s avowed intention to strip legal immigrants of their citizenship rights in this fashion is no mere latter-day election year gambit. The administration’s war against legal immigration is one it has waged from the outset of Trump’s tenure. And while administration officials haven’t managed to tear out the 14th Amendment, root and branch, just yet, they’ve made a number of moves to seed the earth for a radical revision of existing immigration law.
Presidential adviser Steve Bannon calls legal immigration “the beating heart of the problem”: As The Washington Post’s Philip Bump reported in February of 2017, the recently installed Trump administration brought with it, in the form of then-top presidential adviser Steve Bannon, a unique hostility to legal immigrants. Bump highlighted statements made by Bannon on a March 2016 edition of his Sirius radio show, in which he made it clear that he considered gainfully employed legal immigrants a major area of concern — a clear break with most conservative rhetoric on immigration, which traditionally seeks to arouse fear of immigrants living free off the generosity of government programs.
“Twenty percent of this country is immigrants. Is that not the beating heart of this problem?” he said, meaning the problem of native-born Americans being unable to find jobs and rising wages.
This quote is the beating heart of the Bannon philosophy: a fervent defense of nationalism — and some ethnocentrism — pegged to economic anxiety.
“Immigrants could face a damned-if-you-do, damned-if-you-don’t situation from Trump’s White House, if Bannon’s comments are any guide,” Bump reckoned.
Immigrants could face a damned-if-you-do, damned-if-you-don’t situation from Trump’s White House, if Bannon’s comments are any guide.
A hardline stance raises alarm at the Supreme Court: In April of 2017, The New York Times’ Adam Liptak reported on the oral argument stage of Maslenjak v. United States, which concerned a Bosnian Serb named Divna Maslenjak who, fleeing the war-torn regions with her husband, successfully obtained asylum in the United States — but did so on the basis of false claims about her husband’s war service. Those falsehoods were eventually found out, and proceedings to strip the pair of their legal citizenship began in earnest. A lower court split brought the matter before the Supreme Court.
It was there, however, that the government’s broad — and harsh — interpretation of the statute gave many of the justices, including Chief Justice John Roberts, cause for alarm. “Several justices seemed taken aback,” Liptak reported, at the government’s “unyielding position that [it] may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings”:
Justice Stephen G. Breyer said it was “rather surprising that the government of the United States thinks” that the naturalization laws should be “interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens.”
Roberts concurred, concluding that if the Trump administration’s argument was taken to its logical extreme, it would give them “the opportunity to denaturalize anyone they want.” Which was, perhaps, what they were seeking.
The White House courts legislative allies and lays groundwork: In July of 2017, Politico reported that White House senior aide Stephen Miller — the veteran Jeff Sessions aide-de-camp turned presidential confidant who is routinely credited as the driving force behind the white nationalist bent of administration’s hard-line immigration stances — was “quietly working with two conservative senators to dramatically scale back legal immigration — a move that would mark a fulfillment of one of the president’s biggest campaign promises.” Per Politico:
Trump plans to get behind a bill being introduced later this summer by GOP Sens. Tom Cotton of Arkansas and David Perdue of Georgia that, if signed into law, would, by 2027, slash in half the number of legal immigrants entering the country each year, according to four people familiar with the conversations. Currently, about 1 million legal immigrants enter the country annually; that number would fall to 500,000 over the next decade.
The Cotton-Perdue bill — which ended up not attracting any co-sponsors and dying in the Senate Judiciary Committee — was subjected to fervent criticism from all quarters, including members of the so-called “Gang of Eight,” the bipartisan group of senators who attempted to pass a comprehensive immigration reform bill during Obama’s tenure.
But if the bill was unsuccessful as a piece of legislation, it may have had an impact on changing the thinking of conservative legislators on the issue of legal immigration. South Carolina Sen. Lindsey Graham, considered at the time to be a Gang Of Eight dove on immigration matters, opposed Cotton-Perdue at the time. He is now, however, willing to consider a radical change in birthright citizenship laws.
Department of Homeland Security places legal immigrants in their crosshairs: In September of 2017, Buzzfeed’s Adolfo Flores reported that the Department of Homeland Security published a new rule in the Federal Register by the Department of Homeland Security (DHS), which detailed the agency’s plan to scour the social media presences of all immigrants, “including permanent residents and naturalized citizens.” DHS stated that “social media handles, aliases, associated identifiable information, and search results” would be subject to scrutiny.
But while the update to the Federal Register was new, the practice of scrutinizing the social media platforms of immigrants was not. The policy was introduced during the Obama administration — “another fad,” in the words of one critic, “fueled by the belief that social media is going to help the US stop an attack in the country.” Nevertheless, this DHS practice, coupled with an administration that was openly seeking “the opportunity to denaturalize anyone they want,” created the potential for harm to civil rights far beyond anything the Obama administration had ever contemplated.
Legal immigration processes become grindingly slow by the end of Trump’s first year in office: As the American Friends Service Committee documented:
What used to be straightforward application processes – like applying for a green card (permanent residency) and citizenship – have been dramatically slowed down and halted. The backlog of pending green card applications had increased by more than 35 percent by the end of 2017. A new mandated in-person interview for all applicants for employment-based immigration applications has increased processing time and slowed applications to a crawl. These slowdowns leave thousands of people seeking to naturalize as citizens or become lawful residents vulnerable and in a state of limbo. A new U.S. Citizenship and Immigration Service (USCIS) policy allows officers to outright deny any visa or green card application that is missing evidence or contains an error without giving applicants a chance to fix it. This could mean people with valid visas who are trying to renew could be placed in deportation proceedings.
Trump’s agencies coordinate and expand their crackdown: In January 2018, Rewire News’ Tina Vasquez reported that a U.S. District Court had revoked the citizenship of an Indian immigrant, reverting his status to “lawful permanent resident.” The man, as Vasquez noted, was the “first casualty of ‘Operation Janus,’ a joint operation by the DOJ and U.S. Citizenship and Immigration Services (USCIS).”
Operation Janus began as a response to what amounts to a clerical error, in which the USCIS granted citizenship to more than 850 people who had been “ordered deported or removed under another identity when, during the naturalization process, their digital fingerprint records were not available.”
But Trump’s Justice Department took this digital fingerprint ball and ran with it, asserting that “cases in which proper fingerprint data is missing” opened the door to further scrutiny. Per Vasquez:
Immigration and Customs Enforcement (ICE) claims to have identified nearly 150,000 older fingerprint records “of aliens with final deportation orders or who are criminals or fugitives” that have not been digitized. The FBI repository is missing records because “not all records taken during immigration encounters were forwarded to the FBI,” DHS reported. Operation Janus identified 315,000 cases in which people were granted citizenship without the proper fingerprint data available, and USCIS intends “to refer approximately an additional 1,600 for prosecution,” the DOJ reported.
The end result is that it put “thousands of people” in legal jeopardy with regard to their citizenship status, including many who “have been U.S. citizens for decades.”
In June, the Associated Press reported that the USCIS was staffing up a new office with the goal of “identifying Americans who are suspected of cheating to get their citizenship and seek to strip them of it.” Des Moines Register columnist Rekha Basu referred to this move as “a witch hunt.”
“It has to be asked,” Basu wrote. “Where is the federal government’s responsibility for not doing its due diligence at the time? Shouldn’t it have have screened out ineligible applicants when they applied, rather than decades later, when those people have likely renounced other citizenship? Shouldn’t there be a statute of limitations on dredging this up?”
DHS sets up legal immigrants to fail, literally: In July of this year, ThinkProgress’ Rebekah Entralgo reported that the Department of Homeland Security was “considering a plan that would drastically and unilaterally restrict legal immigration to only the wealthiest and most privileged applicants.”
That plan involved reviving what is known as a “public charge test,” an idea whose origins are rooted in past discriminatory immigration practices such as the prevention of Irish Catholics from immigrating to the United States. In more recent years, the interpretation of who is a “public charge” has been limited: one is considered to be a likely “public charge” if one is “primarily dependent” on certain public benefits — Temporary Assistance for Needy Families (TANF), General Assistance (GA), or Supplemental Security Income (SSI) — or otherwise likely to be “institutionalized for long-term care at the government’s expense, excluding imprisonment or conviction of a crime.”
But as Entralgo reported, the “rewritten Trump test would treat perfectly employed individuals as ‘public charges’ by expanding the test to include additional benefits working-class Americans have access to if they meet a certain threshold”:
What the Trump administration is proposing expands that criteria to include anyone who receives or is likely to receive “any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living requirements.”
According to a report from the Center for American Progress, “if every American citizen were forced to take the Trump administration’s test, more than 100 million people — roughly one-third of the U.S. population — would fail.”
(ThinkProgress is an editorially independent newsroom housed within the Center for American Progress Action Fund.)
Trump administration invents further roadblocks to citizenship: Similarly, in August of this year, NBC News’ Julia Ainsley obtained an administration draft of a rulemaking proposal that “would make it harder for legal immigrants to become citizens or get green cards if they have ever used a range of popular public welfare programs.” Under the proposal, immigrants living legally in the United States could be blocked from obtaining legal citizenship if they or member of their household had ever used “Obamacare, children’s health insurance, food stamps and other benefits.” Per Ainsley:
Immigration lawyers and advocates and public health researchers say it would be the biggest change to the legal immigration system in decades and estimate that more than 20 million immigrants could be affected. They say it would fall particularly hard on immigrants working jobs that don’t pay enough to support their families.
A clarion call to white nationalists
As the nation has wended its way to the midterm elections, most of the attention has been focused on the aspects of Trump’s messaging that relies on what NBC News’ First Read team refers to as “conspiracy theories and brute force.”
Trump’s message on the stump has routinely contained some amount of baseless fearmongering about immigrants. Over the past few weeks, Trump has laid out numerous preposterous claims while out on the campaign trail, including wild stories about Californians rioting in the streets over sanctuary cities and Democratic Party plans to provide luxury automobiles to undocumented immigrants.
The primary focus of Trump’s latter-day nativism has been an increasingly fictitious focus on a migrant caravan currently making its way north in Central America, thousands of miles from the United States border. The caravan is primarily composed of a desperate lot of impoverished Central Americans seeking some kind of safe haven from the violence and hunger plaguing their countries of origin.
The administration, however, has made a number of false claims about the migrants in this caravan, including alleging that there are “unknown Middle Easterners” in their midst, that there are “gang members” traveling with them, and that the Democrats have an “open border policy.” Earlier this week, it was announced that more than 5,000 active-duty military personnel would be dispatched to the border, in order to “harden” it against the caravan.
As The Daily Beast reported, the Trump administration does not even sincerely believe its own claims and refers to the effort as a campaign of deception intended to goose GOP turnout for the midterms. As one senior administration official told The Daily Beast, “It doesn’t matter if it’s 100 percent accurate…this is the play.”
But in terms of galvanizing his base before the midterms, it should come as no surprise that a broad attack on legal immigration and the citizenship rights of people who have long lived in the United States, legally and free, have become part of the administration’s closing message. Indeed, based on Trump’s track record, it would be naive to expect something different. It’s far from unreasonable for the average citizen to be concerned about border security, fair immigration processes, or the ability of the government to deport criminal non-citizens from the United States.
But there is a substantial philosophical leap required to direct the same level of animus at an immigrant population that have secured their citizenship status by playing by the rules and who have resided in the United States peacefully and legally, as either full-fledged citizens or otherwise lawful permanent residents. And that leap typically involves the embrace of white nationalism.
It is of course, not controversial to note that white nationalists have been, from the outset of his entry into the 2016 presidential race, flamboyant in their support of Trump. And for just as long, they’ve interpreted his anti-immigration stance to include legal immigrants.
As ABC News reported in March of 2016, William Johnson, a white nationalist who “believes all immigration should be outlawed and almost all nonwhites should be deported,” and that “race mixing and diversity have caused social and cultural degeneration in the United States,” found a kinship in Trump and created a super PAC to support Trump’s presidential bid.
This was far from atypical. As white nationalist leader David Duke proclaimed in an August 2015 edition of his radio show, “Trump is…saying what no other Republicans have said, few conservatives say. And he’s also gone to the point where he says it’s not just illegal immigration, it’s legal immigration.”
Of course, Duke and his fellow travelers might have been relying more upon divination than actual factual evidence to draw these conclusions at the time. But over the course of his tenure as president, Trump has redeemed the faith of people like Duke by pushing, more and more, at the boundaries of legal citizenship — and skillfully navigating the system to find existing levers to place the certainty of legal immigrants’ status, increasingly, onto the knife’s edge.
It is an open question, of course, as to how far the Trump administration will go in its pursuit of tearing down the framework of legal immigration, or if it will surmount the legal obstacles that block its path. But there should be no doubt about Trump’s intentions — his administration has worked on the margins to undermine legal immigration throughout his time in office. More importantly, there should be no uncertainty about what voters Trump — who recently declared himself to be a nationalist — is courting as the midterms draw nigh.