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Secretary of Defense Pete Hegseth has been busy. Over the past few weeks, he’s been rooting out programs and language related to diversity, equity, and inclusion. The U.S. military is dutifully following his lead: West Point no longer supports those ostensibly suspicious organizations such as the Native American Heritage Forum and the Latin Cultural Club, and the Army Recruiting Command has ended its long partnership with the Black Engineer of the Year Awards.

The new Pentagon boss also zeroed in on the pressing task of renaming Fort Liberty back to Fort Bragg, though it’s not exactly a reversal; Hegseth ordered that the base now honor a World War II hero named Roland Bragg (a private first class who won the Silver Star and a Purple Heart at the Battle of the Bulge) instead of the odious Confederate General Braxton Bragg, for whom it was named in 1918. This change is little more than a clumsy stunt, one that manages to insult a loyal PFC while resurrecting the traitorous general—almost certainly after searching for a hero named Bragg, just so people could use the old name with a wink and a chuckle.

Americans might wonder what all of this performative inanity has to do with arming, training, feeding, and housing the most powerful military in the world, or how any of this showmanship makes the United States safer and more capable of deterring its enemies and fighting for its interests. But Hegseth, like most of Donald Trump’s other nominees, knows that his job is not to administer a department but to carry out Trump’s cultural and political vendettas.

[Elliot Ackerman: Bring back the War Department]

When a government department gets an appointee like Hegseth, it must still find a way to function every day, and those many tasks then fall to the deputies and undersecretaries. Sometimes, the effect is almost imperceptible. Ben Carson, for example, was tapped in Trump’s first term to lead Housing and Urban Development; he was out of his depth and it showed, but HUD slogged on despite Carson’s inexperience. The Defense Department, however, cannot run on autopilot. Mistakes made at the Pentagon can get people killed and endanger the safety of the nation. Unfortunately, with few exceptions, Trump’s current nominees to other top-tier Pentagon positions aren’t much more qualified than Hegseth. As with Trump’s nominations in other departments, the key factors appear to be loyalty, wealth, and ideological fervor, not competence.

Day-to-day operations at the Pentagon and other agencies are usually run by a deputy secretary. The previous deputy under Lloyd Austin, Kath Hicks, has a Ph.D. from MIT and years of experience in national defense, including at the Pentagon. Trump’s nominee to succeed her is the billionaire Steve Feinberg, who co-founded Cerberus Capital. He has no military or Pentagon experience. (Likewise, Trump’s pick for secretary of the Navy, John Phelan, is a wealthy businessman and art collector who has never served in the military or any government position.)

Below the secretary, several undersecretaries serve as the senior managers of the institution, and the news here is also worrisome. In 2020, Trump tried to nominate Bradley Hansell, a special assistant to Trump in his first term, as the deputy undersecretary for intelligence (in order to replace someone whose loyalty came into question among Trump’s advisers), a nomination that was returned to Trump without action from the Senate. This time, Trump has nominated Hansell (whose background is in venture capital) for the more senior job of undersecretary, despite his lack of qualifications. Trump has also tapped Emil Michael, a tech investor and executive at Uber and Klout, as undersecretary for research and engineering. Michael is a lawyer; his predecessor in the research and engineering post in the Biden administration, Heidi Shyu, was an actual engineer, with long experience in defense production and acquisition issues.

One relatively conventional choice among the undersecretary nominees is Elbridge Colby, a well-known defense intellectual who served as a deputy assistant secretary of defense in Trump’s first term. (He’s the type of Washington fixture whom Trump’s people usually distrust, but Colby was careful never to get on the wrong side of the MAGA world.) His views, especially regarding nuclear weapons, are alarming: He once wrote that America should consider nuclear responses to a cyberattack. But Colby is a serious choice compared with his future colleagues.

[Eliot A. Cohen: The U.S. needs soldiers, not warriors]

After Hegseth, Trump’s most disturbing DOD nomination—at least so far—is Anthony Tata, the retired one-star general whom Trump has put forward as undersecretary for personnel and readiness. Tata’s views are extreme: He once referred to President Barack Obama as a “terrorist,” claimed that former CIA Director John Brennan was trying to kill Trump, and pushed the conspiracy theory that Bill and Hillary Clinton had murdered several of their political opponents. Trump had to pull Tata’s nomination in 2020 as undersecretary for policy (the position Colby is now slated to get) just 90 minutes before his Senate hearing, after being told that the votes to confirm him were not there. The president is now going to send Tata back and humiliate the Republicans into voting for yet another unacceptable nominee.

The biggest risk is not that these nominees will do poorly in their jobs. They will have assistants—the same bureaucrats and experienced civil servants whom Trump and Hegseth are trying to drive from the Pentagon—who will make sure that things get done as much as possible in the midst of the chaos. The real danger will come during a crisis, when Trump needs the defense secretary and his senior staff to rise to the occasion and provide advice and options under difficult and perhaps even terrifying conditions. Although these nominees will likely serve up plenty of uninformed or irresponsibly sycophantic views at such a moment, few of them have the depth of knowledge or experience to offer steadier guidance—let alone to push back against the president when needed.

Maybe none of that matters: Trump’s first term showed that he is practically unbriefable and rarely listens to advice. Hegseth and his subordinates seem likely to spend much of their time conducting ideological warfare against their own department, with occasional breaks for tasteless public trolling. But sooner or later, Trump could face a foreign-policy crisis, and he will need better counsel than he can get from billionaire defense dilettantes and a MAGA television personality. At such a moment, Americans can only hope that someone with sober judgment and a healthy sense of patriotism—and who knows what they’re doing—emerges to do the job that Hegseth and others have left aside.

The attempt to end birthright citizenship in the United States is an attempt to reverse history, to push our nation back, way back, before the Dred Scott decision of 1857 and the secession crisis that soon delivered the nation into the Civil War. Calling this action “unconstitutional” is utterly inadequate; the maneuver is the soiling of sacred text with profane lies.

Birthright citizenship is a shield of protection to anyone born in this country, as close to a national self-definition as we have; it is our legal DNA. Section 1 of the Fourteenth Amendment should be emblazoned on small laminated cards and carried in every American’s pocket. The language is amply clear:

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.

That language is as fundamental to the Constitution as any other provision, perhaps even more important to the survival and growth of our pluralistic republic than the First Amendment, which protects free speech, free press, the right of assembly, and the right to petition the government. It is as inherent to constitutional function as federalism itself.

[Read: The Attack on Birthright Citizenship Is a Big Test for the Constitution]

The Trump administration now scoffs at this history, purporting to end this guarantee with an executive order signed on Donald Trump’s first day back in the Oval Office and tragically titled, in a fantastic act of Orwellian doublespeak, “Protecting the Meaning and Value of American Citizenship.” The administration makes a phony originalist argument based on the claim that the Fourteenth Amendment’s guarantee extended only to the freedmen and their descendants. Quite the contrary, the amendment’s authors explicitly envisioned the immigrant population and its descendants as part of their plan. Congressman John Bingham, Section 1’s author, defended the amendment by drawing on the authority of the Constitution’s Framers, who had “invited the workers and builders whose honest toil clothes and shelters nations,” and who hailed from “every civilized nationality” to become “citizens of the Republic.” This is why, in blocking Trump’s order last week, the Federal District Court Judge John C. Coughenour said without caveat: “This is a blatantly unconstitutional order.”

Section 1’s origins lie deep in our past. It is rooted in the petitions of African Americans during and after the American Revolution that demanded freedom and natural rights for their service to the patriot cause. It stems from many ideas and strategies of the British and American abolition movements. It echoes Thomas Jefferson’s inclusion of equality among “these truths” in the Declaration of Independence and Abraham Lincoln’s use of the same word in the Gettysburg Address, as well as his full-throated embrace of immigration well before the Civil War. Its most direct and powerful harbinger is the emancipation of nearly 4 million slaves in the midst of the war. Without that greatest transformation in American history, there would be no Fourteenth Amendment—no birthright citizenship and no equal-protection clause either, a codification just as sacred.  

Most profound, birthright citizenship is rooted in the blood of more than 700,000 Americans who died in the Civil War, a catastrophe that made possible what most historians now call the “second founding” of America. The rebirth harkened in the Fourteenth Amendment is the core of this phrase’s meaning. The Trump administration’s desire to obliterate birthright citizenship is part of a larger quest to undo most of this egalitarian tradition, to shift American history into a kind of permanent reverse gear back to an age of secure constitutional white supremacy.

[Read: The Coming Assault on Birthright Citizenship]

One cannot overstate the gravity of Trump’s proposed action, nor the historical ignorance on which it stands. The original Republicans who crafted birthright citizenship into the amendment were doing nothing less than harvesting the greatest results of the Civil War, making good on the promise of freedom for millions of any creed, color, or national origin at the time and for all time to come. Section 1 explained to the world what that war had meant. To erase any part of it now is to tarnish the legacy of William McKinley, Trump’s new favorite president, who fought in the Battle of Antietam. The Union victory there is what prompted the Emancipation Proclamation.

For Bingham, a deeply Christian abolitionist Republican from Ohio, this debate went back at least to the 1850s crises over the expansion of slavery. In 1858 he said, “Every man knows that under our free institutions, every person born of free parents within the jurisdiction of the United States … is a citizen of the United States.” Bingham, of course, overestimated such consensus, because Chief Justice Roger B. Taney in Dred Scott v. Sandford had ruled for a 7–2 majority of the Supreme Court the previous year that Black people possessed “no rights” whatsoever under American law. One of the grand purposes of the Fourteenth Amendment was to relegate the Dred Scott decision to history.

By the winter of 1866, as Congress debated the content of an amendment, it faced many overwhelming obstacles, especially bone-level, historical racism and the doctrine of federalism that fundamentally protected states’ rights. Congress had just fought an all-out war to restore the Confederate states to the Union and to end slavery with an overwhelming use of federal power.

But the Republicans, despite fierce debates, were confident. “I can hardly believe,” wrote Thaddeus Stevens, the radical floor manager for his party, “that any person can be found who will not admit that every one of these proposals is just.” They knew exactly what they intended to achieve. Bingham defended the amendment as protection of the “in-born rights of every person.” Stevens thought they had to “fix the foundations of the government on principles of eternal justice.” Senator Lyman Trumbull saw them advancing principles “which the great Author of all has implanted in every human breast.” They believed that they were enacting justice and morality, not only for freed slaves but for the country’s immigrant future, a fact they deeply understood because they had lived through the recent waves of Irish and German immigration.

[Read: The Real Origins of Birthright Citizenship]

As for states’ rights, Bingham had a constant answer. For “generations to come,” he announced, he sought to “arm Congress … with the power to enforce the Bill of Rights as it stands in the Constitution … in the states.” In the states, by federal power.

In floor debates, Bingham spoke with great eloquence about the purposes of the amendment. “The day of the freedman’s deliverance has come,” he declared, “not without suffering, not without sorrow, not without martyrdom, not without broken altars and broken hearts.” But now he saw potential days of glory, not only for ex-slaves but for the immigrant. The Constitution could now “provide that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless … shall be deprived of life or liberty or property without due process of law.” Above everything, “all persons born” here were forever citizens.  

Trump and his allies have picked a fight over this crucial provision in the Constitution. Americans have to engage the fight, in the courts and with every mode of persuasion. Trump and his allies’ vision is an egregious abuse of real history and the new Constitution it forged in the 1860s. If they succeed, then Grant has surrendered to Lee at Appomattox.

Eight years ago, with his “American carnage” speech, Donald Trump delivered what was likely the darkest inaugural address in U.S. history. During his second inaugural, he tried for a slightly more uplifting message.

“I return to the presidency confident and optimistic that we are at the start of a thrilling new era of national success,” Trump said. And although he listed many challenges, he assured the nation that they would be “annihilated” by American momentum. (Yes, the word choice was strange.) “The golden age of America,” he declared, “begins right now.”

Perhaps it would be more aptly called a Gilded Age. Trump was joined in the Capitol Rotunda by many of the nation’s richest and most powerful men, including Elon Musk, Jeff Bezos, Tim Cook, and Mark Zuckerberg. The attendance of the business titans was rendered conspicuous by the small space. (Other major donors to the inauguration were forced to watch on a livestream after the ceremony was moved inside because of frigid temperatures. Don’t shed a tear for them; they made the donations to curry favor and influence, not for the view.) Their presence also added a strange dimension to Trump’s complaint that “for many years, a radical and corrupt establishment has extracted power and wealth from our citizens.”

[James Fallows: ‘American carnage’: The Trump era begins]

This was the first time since Grover Cleveland’s second inauguration, in 1885—during America’s first Gilded Age—that a president was sworn in for a nonconsecutive second term. And many of the policies and ideas in the speech evoked the late 1800s more than any recent presidency.

The speech was saturated with 19th-century imperialism. Trump announced that he would order the name of America’s highest peak to be changed from Denali back to its old name, Mount McKinley, and he extolled the 25th president’s use of tariffs. (Left unmentioned was the fact that William McKinley was beloved, and bankrolled, by the plutocrats of his era, and twice defeated the populist William Jennings Bryan.) Trump also said he would rename the Gulf of Mexico “the Gulf of America,” and he promised to “pursue our Manifest Destiny into the stars,” invoking the controversial slogan of expansionism. Picking up an idea he had voiced in recent weeks, he also vowed to seize the Panama Canal from Panama.

And why wouldn’t Trump be feeling triumphant? The ceremony was held inside the Rotunda, where a little more than four years ago, supporters who he’d instigated to storm the building paraded through with a Confederate flag. This time around, Senator Amy Klobuchar, the chair of the Inaugural Ceremony Committee, heralded America’s “peaceful transfer of power” in the same building where it was disrupted on January 6, 2021. A few minutes later, Trump stood face-to-face with Chief Justice John Roberts, who granted him broad immunity in a ruling last summer, and took the same oath of office that he flagrantly broke at the end of his first term. His mood was not only celebratory, but messianic.

[Adam Serwer: The Supreme Court puts Trump above the law]

“I was saved by God to make America great again,” he said, describing the failed assassination attempt against him last summer. “Over the last eight years I have been tested and challenged more than any other president in our 250-year history.” (Perhaps he forgot that McKinley was more than just grazed by an assassin’s bullet.)

In particular, he railed against “the vicious, violent, and unfair weaponization of the Justice Department”—a reference to the federal felony charges brought against him for attempting to subvert the 2020 election and for refusing to hand over classified documents he removed from the White House. “Never again will the power of the state be weaponized to persecute political opponents,” he said, a vow that sits uneasily with promises of retribution from himself and from his nominee to lead the FBI, Kash Patel.

Historically, presidents have used their inaugural addresses to pivot from the blue-sky promises of the campaign trail to the more sober language of governing. Rather than dwell on campaign vows they may struggle to keep, they reach for gauzy and unifying language. This, however, is not Trump’s forte. In major speeches, when Trump strains for the tone of an inspirational statesman, he usually ends up sounding more like a motivational speaker. (“In America, the impossible is what we do best,” he intoned today.) This afternoon’s often repetitive speech is unlikely to live on as a work of oratory. Nor did Trump make much effort to reach out to or reconcile with the voters who don’t support him, although he promised that “national unity is returning to America.” He boasted about his (very narrow) margin in the popular vote and victories in seven swing states. “My recent election is a mandate to completely and totally reverse a horrible betrayal and all of these many betrayals that have taken place and to give the people back their faith, their wealth, their democracy, and indeed their freedom,” he said.

[Jonathan Chait: The political logic of Trump’s international threats]

Instead, Trump delivered something akin to his stump speech: a meandering laundry list of policy promises of varying degrees of plausibility. He called for a huge expansion of oil and gas extraction. “We will drill, baby, drill,” he said. He promised to impose major tariffs. He said he would deploy U.S. troops to the Mexican border, expand immigration enforcement inside the country, and declare drug cartels foreign terrorist organizations. He also signaled an executive order that will continue the attacks on people who don’t conform to traditional gender norms. “It will henceforth be the official policy of the United States government that there are only two genders, male and female,” he said.

But much of the speech was devoted to things that are almost certainly never going to happen. He vowed to beat inflation but didn’t say how. He said he’d establish an External Revenue Service to handle the money he claimed tariffs would bring in, but this would require an act of Congress, as would the Department of Government Efficiency he claims he’ll create. (One wonders what the efficiency hawks at DOGE would have to say about the proposed ERS, given that it would represent a superfluous bureaucracy created to perform a function already handled by Customs and Border Patrol.) This was all a warm-up for Trump’s most audacious promise. “Our power will stop all wars and bring a new spirit of unity to a world that has been angry, violent, and totally unpredictable,” he said.

It was an appealing promise. But the world already knows what four years of a Trump presidency looks like. Serenity, peace, and predictability were not the hallmarks of his first term, and they are unlikely to describe the second any better.

A politically powerful opponent of birthright citizenship railed that the United States cannot “give up the right” to “expel” dangerous “trespassers” who “invade [our] borders,” “wander in gangs,” and “infest society.”

Was this Donald Trump speaking in 2024? No, the quote is from an 1866 speech on the Senate floor by Senator Edgar Cowan of Pennsylvania, a leading opponent of adding a provision to the U.S. Constitution granting citizenship based solely on birth on U.S. soil. Who were the “invaders” that Senator Cowan so feared? “I mean the Gypsies,” Cowan explained, despite offering no evidence that Roma migration posed a risk to the United States.

Senator Cowan lost the fight. In 1868, the nation ratified the Fourteenth Amendment, the first sentence of which guarantees birthright citizenship. The amendment invalidated the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which declared that no Black person could ever be a U.S. citizen. Equally important, the Constitution now guaranteed citizenship to the children of immigrants born on U.S. soil, “no matter from what quarter of the globe he or his ancestors may have come,” as one senator later put it in a speech to his constituents.

[Martha S. Jones: Birthright citizenship was won by freed slaves]

More than 150 years later, Trump has vowed to end birthright citizenship on “day one” of his new administration for children without at least one parent who is a citizen or green-card holder. He made that announcement in a three-minute video prominently posted on his campaign website, which he repeated in an interview with NBC’s Meet the Press last month.

In 2025, the end of birthright citizenship is more than just an applause line at the Conservative Political Action Conference. It has a genuine, if slim, chance of making its way into law. If it does, it will upend the lives of millions, and create a caste system in which a new set of people—native-born non-Americans—can never work or live in the open.

This prospect ought to be taken seriously. How would President Trump implement such a plan? Is it constitutional? And would the U.S. Supreme Court back him up?

The first question is easy, because Trump has told us exactly how he intends to proceed. In the video, the president-elect commits to issuing an executive order on January 20, 2025, that would deny citizenship not only to the children of undocumented immigrants but also to those born to parents who both are legally in the United States on a temporary visa for study or work. (Trump’s order as proposed would apply only to children born after it is issued.)

The consequences would be immediate. Trump says he will order government officials to deny these children passports and Social Security numbers. They will be prohibited from enrolling in federal programs such as Medicaid, the Children’s Health Insurance Program, and the Supplemental Nutrition Assistance Program, and likely state benefits as well.

As adults, if all goes according to Trump’s plan, they will be barred from voting, holding elected office, and serving on juries. States could deny them a driver’s license and block them from attending state universities. They would be prohibited from working in the United States, and any U.S. citizen who employs them could be fined or even jailed under federal immigration laws. Many would be rendered stateless. Perhaps worst of all, they would live in perpetual fear of being deported from the only country in which they have ever lived.

[Read: Trump’s murky plan to end birthright citizenship]

Ending birthright citizenship for these children would affect everyone in America. Everyone would now have to provide proof of their parents’ citizenship or immigration status on the date of their birth to qualify for the rights and benefits of citizenship. The new law would necessitate an expanded government bureaucracy to scrutinize hospital records, birth certificates, naturalization oaths, and green-card applications.

Lawsuits are sure to follow, which leads to the second question: Will Trump have the constitutional authority to end birthright citizenship for the children of undocumented immigrants?

Per the text of the Constitution, the answer is a hard no. Some constitutional provisions are fuzzy, but the citizenship clause is not one of them. It states: “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.”

Even the deeply racist Supreme Court back in 1898 couldn’t find any wiggle room in that language. Just two years before, in 1896, the Court had somehow read the Constitution’s equal-protection clause to permit “separate but equal” in Plessy v. Ferguson, ushering in the Jim Crow era. But when the U.S. government argued in United States v. Wong Kim Ark that the children of Chinese immigrants were not birthright citizens, the justices balked. The language granting citizenship to “all persons born” in the United States was “universal,” the Court explained, restricted “only by place and jurisdiction.” More recently, the Supreme Court reaffirmed that point, stating as an aside in a 1982 opinion addressing the rights of undocumented children to attend school: “No plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Despite the clear text and long-standing judicial precedent, Trump claims that undocumented immigrants and their children are not “subject to the jurisdiction” of the United States, and so fall within the exception to universal birthright citizenship.

That is nonsense. Undocumented immigrants must follow all federal and state laws. When they violate criminal laws, they are jailed. If they park illegally, they are ticketed. They are required to pay their taxes and renew their driver’s license, just like everyone else. Trump certainly agrees that undocumented parents of native-born children can be deported for violating immigration laws at any time. So in what way are these immigrants and their children not subject to U.S. jurisdiction?

The citizenship clause’s exception for those not “subject to the jurisdiction” of the United States applies only to children born to members of American Indian tribes and the children of diplomats, as Congress explained when drafting that language in 1866. In contrast with undocumented immigrants, both groups owe allegiance to a separate sovereign, and both are immune from certain state and federal laws. (Native Americans were granted birthright citizenship by federal statute in 1924.)

As nonsensical as they are in an American context, Trump’s ideas didn’t come out of nowhere. In 1985, the law professor Peter Schuck and the political scientist Rogers Smith wrote an influential book, Citizenship Without Consent, arguing that the Fourteenth Amendment’s citizenship clause did not apply to the children of undocumented immigrants. These scholars asserted that “immigration to the United States was entirely unregulated” before the 1870s, and so there was no such thing as an “illegal immigrant” and likewise no intent to grant birthright citizenship to their children. Many scholars and commentators, including some members of Congress, have repeated that same claim. In 2015, the law professor Lino Graglia testified before the House Judiciary Committee that “there were no illegal aliens in 1868 because there were no restrictions on immigration.” Then-Representative Raúl Labrador repeated the same point at that hearing, asserting as fact that there was “no illegal immigration when the Fourteenth Amendment came into being.” In an op-ed in June 2023, a former Department of Homeland Security policy adviser declared, “There were no immigrant parents living unlawfully in the United States” in the 19th century.

These critics have their facts wrong. In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the “illegal aliens” of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.

[Read: Birthright citizenship wasn’t born in America]

Even so, these ideas have gained traction in the right-wing legal community—a group that will be empowered in Trump’s next term. The Fifth Circuit judge James C. Ho, who is regularly floated as a potential nominee to the Supreme Court, recently said in an interview that children of “invading aliens” are not citizens, because “birthright citizenship obviously doesn’t apply in case of war or invasion”—a reversal of his previous position on this issue. (This is the judicial equivalent of shouting, “Pick me! Pick me!”) Never mind that undocumented immigrants—a majority of whom entered the United States legally and then overstayed their visa—don’t qualify as invaders under any definition of the word. And never mind that there is no support for that idea in either the Constitution’s text or its history. In 1866, Senator Cowan opposed granting citizenship to the children of the “flood” of Chinese immigrants into California, as well as to Gypsy “invaders” of his own state. His colleagues pointed out that the only invasion of Pennsylvania was by Confederate soldiers a few years before. Birthright citizenship, they explained, would ensure that the United States would never revert back to the slave society that the Confederates invaded Pennsylvania to preserve.

In truth, all of these baseless arguments are window dressing for the real goal. The Fourteenth Amendment’s overarching purpose was to end a caste system in which some people had more rights under the law than others. To be sure, that ideal has always been a work in progress. But many opponents of birthright citizenship don’t even hold out that ideal as a goal; they would rather bring caste back, and enshrine it in our laws.

If birthright citizenship were to end tomorrow for children without at least one parent who was a citizen or lawful permanent resident, it would bar from citizenship hundreds of thousands of people each year. These people wouldn’t be eligible to participate in our democracy, and they would be forced to live and work in the shadows, as would their children and their children’s children. The end of birthright citizenship would create a caste of millions of un-Americans, locked in perpetuity into an inferior, exploitable status. Ironically, if Trump were to succeed in ending birthright citizenship, he would preside over the most dramatic increase of undocumented immigrants in U.S. history.

That brings us to the third question: Would five members of the Supreme Court uphold Trump’s proposed executive order?

No sitting justice has addressed this question directly. At his confirmation hearing in 2006, Justice Samuel Alito was asked whether he thought the children of undocumented immigrants qualified for birthright citizenship under the Fourteenth Amendment. He refused to answer on the grounds that a future case might come before him, but he also observed: “It may turn out to be a very simple question. It may turn out to be a complicated question. Without studying the question, I don’t know.” Justice Amy Coney Barrett declined to respond to the same question for the same reason. (These two justices also dodged questions about whether they would overturn Roe v. Wade on those grounds.)  

The Georgetown law professor Steve Vladeck, an expert on the Supreme Court, believes that, at most, “two” or “maybe … even three justices” on the current Court would vote to end birthright citizenship. But all it takes is five, and the Court’s composition may well change. Trump appointed three justices during his first term in office, and he could appoint a few more before the end of his second. It is they who will have the last word.