President Trump can cause great pain in the area of citizenship by birth — even without an amendment

President Donald Trump’s recent comments on ending the right of citizenship by birth through executive order were met with swift condemnation from anybody who knows anything about the Constitution of the United States, including House Speaker Paul Ryan (R-Wis.). However, given the arguable affect his incendiary rhetoric seems to have on the public as well as the government agencies under his control, we mustn’t rest in safeguarding the single most important right granted under the document Trump swore to protect. Trump can cause great pain in this area, even without an amendment. 

Most of us born in the U.S. do not receive a document stating that we are citizens. Rather, we receive a locally issued birth certificate that says we were born in the U.S. When we seek some proof of our status to travel, we apply for a passport with the local passport office, which is both primary evidence of our citizenship and the first and often only such proof any of us ever obtain. Those of us born here who leave the United States without a passport, perhaps because we were born to foreign parents or American parents who live abroad, apply for either a Consular Report of Birth Abroad or a passport, or both, at a U.S. consulate or embassy. The consular function abroad is the responsibility of the Department of State.  

{mosads}Up until now, for passport officers and consular officers alike, adjudication of citizenship by birth has started and often ended with the presentation of a presumptively valid birth certificate and identification satisfactory to establish that the person in question is s/he named therein. There have been cases where the validity of documentation is questioned, such as the recent midwife fraud cases along the southern border, but for the most part, the integrity of the documents issued by state and municipal authorities is respected by the U.S. government.

Trump has made his intentions clear, and since the Department of State is an executive agency, there are many ways that he can trample the rights of American citizens short of getting the super majority needed to change the Constitution. He can order Secretary of State Michael Pompeo to tighten adjudicatory criteria to require additional documentation that is cynically calculated to be impossible to find as a way of stalling “suspect” applications. He can redeploy resources at passport agencies that handle the bulk of applications born to Mexican or Central American parents to achieve insurmountable processing delays. The effect of these actions on people who are actually American citizens is inestimable and ranges from denial of services and employment to deportation. 

Up until Donald Trump, there has been but one class of U.S. citizen. We have guaranteed equal justice for all. Perhaps changing the 14th Amendment would be a good thing to do in the future. I do not argue the wisdom of the policy one way or another. But to create a lessor citizen by fiat or by simple failure to carry out the duties of the presidency is an assault on our fellow citizens and on the Constitution. We must be vigilant, have faith in and use the courts, and above all, vote. 

Stephen P. Pazan is an attorney with the law firm of Barket Epstein Kearon Aldea and LoTurco in New York and a consultant on investment immigration. Previously, he was a Foreign Service Office and held the post of American Citizen Services Chief at the U.S. Embassy in Warsaw, Poland. As such, he was the Embassy’s chief adjudicator of U.S. citizenship issues.