After months of avoiding details about a divisive plan to end birthright citizenship, President Donald Trump’s administration is rolling out a series of new documents that offer a stark glimpse into how it would implement an executive order that upends the century-old understanding about the benefits of being born in the United States.
The trove of documents from half a dozen federal agencies in recent days are a direct result of a blockbuster Supreme Court decision last month that allowed the administration to develop plans for ending birthright citizenship – even though the effort has once again been placed on hold.
Under those guidance documents, parents of newborns – including US citizens – might be required to jump through additional hoops to verify their own immigration status to obtain a passport or Social Security number for their children.
Among the documents made public in recent days is one from the State Department that explains how officials would be required to “request original proof of parental citizenship or immigration status” to proceed with processing a passport application. “This information will be necessary to determine if those applying for a passport are U.S. citizens,” the three-page document reads.
The Social Security Administration issued similar guidance as well.
“With respect to citizenship, an SSN applicant may currently demonstrate U.S. citizenship by providing a birth certificate showing a U.S. place of birth,” the document says. “Once the EO takes effect, a birth certificate showing a U.S. place of birth will not be sufficient documentary evidence of U.S. citizenship for persons born after the EO takes effect.”
It continues: “To comply with the EO, SSA will require evidence that such a person’s mother and/or father is a U.S. citizen or in an eligible immigration status at the time of the person’s birth.”
Other guidance documents from the Department of Health and Human Services, the Centers for Medicare and Medicaid Services, and the Department of Agriculture lay out how those agencies would go about verifying the citizenship of children for various social services.
The agencies appear to be leaning on a four-page document issued by the Department of Homeland Security’s US Citizenship and Immigration Services, which says it’s meant to “address legal questions relevant to the implementation” of Trump’s order. That memo mostly contains definitions, including ones on who would be covered by the policy and who would be exempted.
Among those exempted from the president’s policy, according to the USCIS memo, are children of asylees and refugees. Until now, it wasn’t clear whether the Trump administration would subject those groups of non-citizens to the order.
Executive order still on hold in courts
Signed by Trump on January 20, the executive order “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP” said that the federal government will not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully, or were in the states lawfully, but temporarily.
Several rulings issued by federal courts this month have ensured that that policy will not take effect for now, and the guidance documents acknowledge that reality.
“However, the government is preparing to implement the EO in the event that it is permitted to go into effect,” the USCIS memo states.
Immigration rights advocates who have taken Trump to court over his order stressed on Monday that the newly released guidance is meaningless so long as the courts continue to block enforcement of the policy.
“Nothing in this guidance remotely changes the bottom line that this executive order is unconstitutional and cruel. Everyone in the country remains protected by our class action, and we will keep fighting to ensure this order never goes into effect,” said Cody Wofsy, an attorney with the American Civil Liberties Union, which convinced a federal judge in New Hampshire to block Trump’s order via a class-action lawsuit.
New Jersey Democratic Attorney General Matthew Platkin, who is leading a multi-state challenge to Trump’s policy, told CNN that “whatever the promises in this guidance, we remain confident that President Trump’s unconstitutional attempt to terminate birthright citizenship will never take effect given the nationwide injunctions that have issued here.”
“The most important message we want to convey is: expecting parents should know their babies remain protected – and that children born in the U.S. continue to be U.S. citizens regardless of their parents’ immigration status,” said Conchita Cruz, the co-executive director of the Asylum Seeker Advocacy Project, which also sued Trump over the executive order, told CNN.
Practical concerns
The guidance speaks to some of the practical concerns raised by Supreme Court justices during oral arguments in the birthright case in May, including those who ultimately sided with Trump on the issue of nationwide injunctions.
Immigrant rights groups had argued that Trump’s order would require every parent of a newborn child – including US citizens – to demonstrate their immigration status before obtaining a passport for their child.
The memos point to changes in how parents would have to document their own citizenship status in the hospital after having a child. For decades, parents have been able to apply for a Social Security number as part of the hospital birth registration process. The Social Security Administration memo lays out a different process in which the agency would first attempt to establish parents’ immigration status automatically.
If that didn’t work, parents would have to potentially take additional steps to verify their citizenship and obtain a Social Security number for their child.
Questions about the practical implications of Trump’s order prompted a key exchange between the administration’s lawyer and Justice Brett Kavanaugh during the Supreme Court’s oral arguments earlier this year.
“On the day after it goes into effect – this is just a very practical question, how it’s going to work – what do hospitals do with a newborn, what do states do with a newborn?” Kavanaugh, a conservative who sided with Trump on the issue of nationwide injunctions, asked the lawyer for the Trump administration.
Solicitor General D. John Sauer argued they wouldn’t do anything different because, he said, it is federal officials who will determine whether to accept birth documents.
“How are they going to know that?” Kavanaugh pressed.
“The federal officials will have to figure that out essentially,” Sauer responded.
“How?” Kavanaugh continued.
Sauer said that officials could require parents to demonstrate their citizenship.
“For all the newborns?” a skeptical Kavanaugh asked. “Is that how it’s going to work?”
“Again, we don’t know,” Sauer said, “because the agencies were never given the opportunity to formulate the guidance.”
Kavanaugh sided with his fellow Supreme Court conservatives to rule in Trump’s favor last month.
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