Global Issues
Trump Tried to Rewrite Citizenship With a Pen -By Fransiscus Nanga Roka
Trump tried to accomplish with executive order that which Article V employs a supermajoritarian constitutional process to accomplish. This sort of maneuver, which the Court could have allowed, would mean every president could begin amending constitutional rights via bureaucratic fiats.
Donald Trump’s unsuccessful assault on birthright citizenship was never just about immigration. It was a grasp to create an even deadlier precedent: that a president can determine which children get the status of constitutional personhood.
The US Supreme Court Invalidated Order No. 14160 of Trump on June 30, 2026 , a decree that Trump signed on January 20, 2025. That would have automatically disqualified US citizens by birthright if their mother was undocumented or here on a temporary basis and their father neither a citizen nor lawful permanent resident.
The order in Trump v. Barbara was denied by the Court 6–3, with acutely divided justices voting against them. But a critical point of differentiation makes all the difference: only five justices—Chief Justice John Roberts, Amy Coney Barrett and the three liberal justices—concluded that the order discriminated against them in violation of the Fourteenth Amendment itself. The statutory basis was the sixth vote, provided by Justice Brett Kavanaugh, who found that the order violated 8 U.S.C. §1401. He opted not to take part in the constitutional holding.
Unaccompanied aliens not just immigrant parents, but babies: tens of thousands or more than that every year who’d have legal identity only by virtue of their parents having gotten it. The order extended beyond undocumented migration to families who were in the U.S. legally on student, employment and tourist visas. Associated Press
His administration held that birthright citizenship enticed illegal immigration and “birth tourism.” It contended that children of undocumented or temporary migrants were not “subject to the jurisdiction” of the United States.
That argument is self-contradictory and collapses on itself. American criminal, civil and immigration law definitely applies to these kids and their parents. The state cannot assert that it has jurisdiction to arrest, detain and deport people but simultaneously deny that identical jurisdiction when citizenship is involved.
Contention: Do the Article II powers of the president overlap with and invalidate the Fourteenth Amendment Citizenship Clause: All persons born or naturalized in the United States are citizens …” The narrow old-school exceptions apply to children of accredited diplomats and competing occupying forces—not children whose parents are without permanent immigrant status.
Long before Trump. US Supreme Court ruling in United States v. Wong Kim Ark (1898) recognizing citizenship to a person born in the state of the US whose parents were aliens Roberts failed to find “scant evidence” for the administration’s ludicrous revisionism and reiterated that the rule encompasses U.S. born children who are subject to American sovereign power.
Trump tried to accomplish with executive order that which Article V employs a supermajoritarian constitutional process to accomplish. This sort of maneuver, which the Court could have allowed, would mean every president could begin amending constitutional rights via bureaucratic fiats.
So the ruling is historic but not inevitable. Thus, Kavanaugh insisted that Congress is where §1401 should be decided and this will invite a Congress at some point to amend §1401 only to once again dare someone to challenge its formation constitutionally.
Three safeguards are imperative. Congress must establish laws that enshrine functioning systems of citizenship documentation without consideration of parental status. Because citizenship by definition can not make sense geographically, executive actions impacting that status must be maintain nationally in immediate courts of appeal. Last, federal and state agencies should not be allowed to postpone the issuance of birth certificates, passports or Social Security records pending the resolution of constitutional litigation.
Democratic government owns immigration policy. Presidency is not for constitutional citizenship. Making newborn babies stateless is not a defence of sovereignty, it is the weaponisation of identity.
Fransiscus Nanga Roka
Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia
