President Donald Trump’s United States Citizenship and Immigration Services (USCIS) is reportedly setting out an ambitious plan to strip citizenship from naturalized Americans who are found to have fraudulently secured the legal status.
The denaturalization plan, detailed in The New York Times, will be spearheaded by USCIS Director Joe Edlow and focus on referring 100 to 200 denaturalization cases every month to the agency’s Office of Immigration Litigation.
“If the cases are successful, it would represent a massive escalation of denaturalization in the modern era, experts said. By comparison, between 2017 and this year to date, there had been just over 120 cases filed, according to the Justice Department,” the Times reports:
Under federal law, people may be denaturalized only if they committed fraud while applying for citizenship, or in a few other narrow circumstances. But the Trump administration has shown a zeal for using every tool at its disposal to target legal and illegal immigrants, leading activists to warn that such a campaign could sweep up people who had made honest mistakes on their citizenship paperwork and sow fear among law-abiding Americans. [Emphasis added]
…
“It’s no secret that U.S. Citizenship and Immigration Services’ war on fraud includes prioritizing those who’ve unlawfully obtained U.S. citizenship — especially under the previous administration,” said Matthew J. Tragesser, a U.S.C.I.S. spokesman. “We will pursue denaturalization proceedings for those individuals lying or misrepresenting themselves during the naturalization process. We look forward to continuing to work with the Department of Justice to restore integrity to America’s immigration system.” [Emphasis added]
In a prior interview with Breitbart News, Edlow criticized the Biden administration’s deregulation of the naturalization process, where security questions, for instance, were shortened in order to speed up the process for foreign nationals seeking naturalized American citizenship.
In fewer than four years, the Biden administration awarded citizenship to almost 3.5 million foreign nationals, which the Migration Policy Institute notes is “by far the most [naturalizations] of any single presidential term.”
For perspective, the number of foreign nationals who secured citizenship under Biden eclipses those who were awarded citizenship under former Presidents Jimmy Carter, Ronald Reagan, and George H.W. Bush, combined.
Edlow said at the time that there ought not to be quotas set for USCIS adjudicators regarding naturalizations.
“I don’t believe we should have quotas for how many naturalizations we do, how many adjustments we do,” Edlow told Breitbart News. “I want to make sure that the adjudicators are taking the proper amount of time to really screen and vet these individuals to make the determination that they are, in fact, qualified for the benefits that they are applying, including and most importantly, for naturalization.”
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Birthright Citizenship? I Think It’s An Open Question
On his first day in office in his second term, January 20, 2025, President Trump issued a collection of Executive Orders. One of those was number 14160, titled “Protecting the Meaning and Value of American Citizenship.”EO 14160 seeks to do away with the long-standing practice of various U.S. agencies of recognizing U.S. citizenship of anyone born in the United States, even if that person’s parents were not legal residents or otherwise legally in the country at the time of the birth. From EO 14160:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Following issuance of EO 14160, multiple lawsuits were brought in courts around the country seeking injunctions to compel the government to recognize the citizenship of various individuals born here to illegal aliens. Several courts promptly issued injunctions blocking Trump’s Order, all of them on a nationwide basis as far as I can determine. In June, three of those cases, consolidated under the name Trump v. CASA, came before the Supreme Court on the question of whether a District Court could issue a nationwide injunction to block the Order everywhere. The Supreme Court invalidated the nationwide aspect of the injunctions. However, the Court did not consider the merits of whether President and executive agencies could refuse to recognize citizenship of children born here to illegal aliens.
But now there are petitions before the Supreme Court asking it to consider this question of so-called “birthright” citizenship on the merits. The Court is widely expected to take up the issue in its current term. So, what is the right answer?
In terms of relevant legal text, it all comes down to a few words from Section 1 of the Fourteenth Amendment:
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.
Does that sound open and shut? It all depends on the meaning of the phrase “and subject to the jurisdiction thereof.” If children of illegal aliens are “subject to the jurisdiction” of the United States, as that phrase is interpreted in the context of the 14th Amendment, then they are entitled to citizenship; and if children of illegal aliens are not properly viewed as “subject to the jurisdiction” of the United States, then they are not entitled to citizenship.
Which is right? It turns out that there are some pretty good arguments on both sides. The most often-cited arguments by the contending parties in fact rarely mention the text of the Amendment. On the side of those supporting birthright citizenship, the most oft-cited point is that the federal government has operated for decades as if birthright citizenship were the law, granting status and official documents to anyone who can prove they were born in the country. But then, it is completely fair to ask if there has been a solid basis for that. If some federal agencies were operating outside the law, it would certainly not be the first time. On the other side, opponents of birthright citizenship point to the extreme case of the “anchor baby,” where a pregnant woman crosses the Rio Grande illegally, immediately gives birth, takes pictures, and goes back home. Could it really be that that baby is entitled to show up twenty years later with the pictures as proof and claim all the rights and privileges of U.S. citizenship? (In fact, that has long been the operating basis of U.S. government policy, whether it seems to make sense or not.)
Looking for a credible advocate of the birthright citizenship position to state the basis of the case, I come upon an interview in Harvard Law Today from January 24, 2025 of Harvard Professor Gerald Neuman. The date of the interview was immediately after issuance of Trump’s EO. Not at all to my surprise, Neuman treats the case for birthrate citizenship as obvious, and the views of anyone taking the opposite position as having “either a crazy or a dishonest interpretation of the Constitution” — his words. Here is the gist of Neuman’s argument:
After the Civil War, with slavery abolished, there were now formerly enslaved people and free Black residents who had never been enslaved but hadn’t been considered citizens in their states or by the Supreme Court. To protect them and their children and descendants, Congress passed the Civil Rights Act in 1866 and then put the rule in the Constitution, in the 14th Amendment, that everyone who was born in the United States and subject to the jurisdiction of the United States is a citizen of the United States. By the time this entered the debates in the 1860s, this was an issue not only with regard to Black people, but also with regard to the Chinese who had started coming to the west coast. It was explicitly discussed whether the rule would include the Chinese, and it was clearly decided that, yes, it would apply to people of any race.
Neuman then cites the a Supreme Court case from 1898, United States v. Wong Kim Ark.Mr. Wong had been born in the U.S. to Chinese parents. As a young adult, he made a trip to China, and when he tried to return he was refused entry. The Supreme Court said that Mr. Wong was entitled to re-entry as a citizen. For Neuman, this completely settles the matter.
Are you persuaded? As usual with advocates of the progressive orthodoxy, Professor Neuman has left out a few key things that he hopes you will not be aware of. For me, the most significant point for the other side is the Indian Citizenship Act of 1924. Here is the entire relevant text of that statute:
BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.
That’s right — despite being born in the United States and after ratification of the 14th Amendment in 1870, Indians were not treated as citizens until this Act in 1924. Clearly, the thinking was that their membership of sovereign tribes made them not “subject to the jurisdiction” of the United States within the meaning of the Amendment. So what about today’s illegal aliens makes them significantly different from Indians pre-1924?
Neuman points to the Supreme Court’s 1898 Wong case as if it settles the argument, but that case falls rather far short of bringing his argument all the way home. The Wong case pre-dates almost all restrictions on immigration into the U.S., and there was no assertion that Mr. Wong’s parents were in the country illegally; and thus the case did not address at all the status of children born in the U.S. to illegal aliens.
An example of a commentator making the case against birthright citizenship is Richard Epstein in this piece at the Civitas Institute from January 28, 2025. Here is Epstein on the significance (or lack thereof) of the Wong case:
[The Wong] decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens. Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute. The gist of Justice Horace Gray’s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country.
Epstein’s position is that the granting of birthright citizenship to children of illegal aliens creates a perverse incentive structure that incentivizes breaking the law:
[T]he entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct.
Epstein concludes:
No one at the time or now has advanced a coherent explanation as to why birthright citizenship is desirable as a matter of principle. So why assume that it was adopted silently through the back door?
So on balance, I regard this as an open question. Given that it is an open question, I regard Epstein’s point about perverse incentives as much more significant than Neuman’s point about longstanding agency practices.
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