‘the Next Roe V. Wade’: Trump Allies Plot Long Campaign Against Birthright Citizenship

Just weeks after the Supreme Court rejected President Donald Trump’s sweeping bid to end birthright citizenship, his conservative allies were bucking one another up and insisting that the loss in court was fuel for the movement.

The court’s ruling — narrower than many expected — and the ensuing media coverage brought a fringe legal interpretation of the 14th Amendment further into the mainstream. And now its proponents are certain that it is seeded in the conservative consciousness.

“There’s going to be a lot of focus on this issue, both in legal academia from some, but not exclusively, conservative law professors,” Iowa Solicitor General Eric Wessan, told POLITICO. “There’s now a lot of interest in this area, and when you get the truth-seeking function of academia set on an interesting question, you’re naturally going to elicit a lot of responses, and that’s going to keep the issue fresh.”

Wessan was one of several conservative lawyers, former Trump aides and immigration hawks who mingled over pastries and coffee in late July at the conservative gathering place Bellator Hall near Capitol Hill, where they discussed the future of the movement. Well understood is that it’s a fight that may outlast some of those in the room, a decades-long battle akin to the effort to end a constitutional right to an abortion or overturn the doctrine of Chevron deference, which held that courts should defer to an agency’s stance when interpreting an ambiguous statute.

“They turned birthright citizenship into the next Roe v. Wade, that we’re going to have to spend the next 50 years overturning,” Mike Davis, the founder of Article III Project, a Trump-aligned legal organization, said at the event. “They have destroyed our most crucial sovereign power as we the people, which is our sovereignty, controlling who comes and goes and who becomes one of us.”

The discussions outside the administration have run parallel to talks inside the White House, where aides over the last several weeks have debated policy options, with a particular focus on targeting women who travel to the United States for the primary purpose of giving birth so their child can obtain U.S. citizenship.

The Trump administration missed the deadline to ask Supreme Court for a rehearing on its June ruling, but the president, flanked by White House deputy chief of staff Stephen Miller on Thursday, unveiled two new executive orders narrowing birthright citizenship and cracking down on “birth tourism” schemes, the White House’s latest bid to work around the ruling.

Though far from the complete change Trump wanted, the orders work to narrow who qualifies. The first order targeted children born of foreign diplomatic staff working in the U.S., those born of “alien enemies” of the United States, including foreign terrorist organizations, and children born of women who enter the United States with the sole purpose of giving birth so their child gains citizenship.

“We’re taking this action to ensure that large numbers of people that wrongly would be getting birthright citizenship will no longer be eligible for those benefits,” Miller told reporters on Thursday.

For more than a century, the legal consensus has been that, with a few notable exceptions, anyone born in the United States was a citizen — a right guaranteed by the 14th Amendment. Trump tried to change that with a broad executive order on his first day back in office. In Trump v. Barbara, five justices — Chief Justice John Roberts, Justice Amy Coney Barrett and three liberal justices — agreed the 14th Amendment guarantees birthright citizenship. Justice Brett Kavanaugh said the executive order was in violation of a federal statute but that Congress could end birthright citizenship.

Kate Shaw, a professor of law at the University of Pennsylvania Carey School of Law, who has written on the Supreme Court and reproductive rights, said there’s “every reason to think that the fight for the future of birthright citizenship will resemble recent fights over federal constitutional protections for abortion.”

“The question isn’t whether conservatives will mobilize against birthright citizenship and Barbara, but whether progressives will also mobilize to defend the settled understanding of the Constitution’s citizenship clause — as they very much need to,” she said.

The president’s executive orders this week are evidence that Republicans will continue to push the envelope, said New York University law professor Melissa Murray.

“They’re going to keep pressing on this, whether it is incrementally or in big bursts,” she said. “These are attempting to rewrite the rules of birthright citizenship.”

Speakers at the recent convening, hosted by the Conservative Partnership Institute and the Immigration Accountability Project, included Gene Hamilton, president of America First Legal, and previously the president’s deputy White House counsel, Roger Severino of the Heritage Foundation and Florida chief deputy attorney general Ryan Newman. John Eastman, who, before he helped Trump devise his bid to overturn the 2020 election, had spent decades pushing the cause, also addressed the room.

The president’s allies said they plan to make ending birthright citizenship a recurring topic at conferences and law schools where the next generation of lawyers will be trained. And even as the prospects of legislation remain slim, they are pressing lawmakers to introduce bills ranging from constitutional amendments to narrower measures targeting women who come to the U.S. just to give birth. They also view it as a moment to expand broader immigration enforcement efforts, to ramp up deportations and deter migration to the U.S.

“It was a success that we got as far as we did,” said Eastman, who directs the Claremont Institute Center for Constitutional Jurisprudence. “And that conversation is now going on throughout the country, throughout the country by ordinary citizens and lawmakers and legislators and judges alike.”

For others, the long game is in the courts. They say birthright citizenship should be a litmus test for all future judicial nominees.

“We need nine [Justice Samuel] Alitos on the Supreme Court,” Davis said.