It’s less than a week until Election Day, and Donald Trump is scared. Most polls indicate that Democrats are poised to retake the House of Representatives. From there, they’ll be able to unleash a wave of oversight investigations into scandals that his Republican allies in Congress have largely squelched or ignored. It’s less likely that Democrats will also win back the Senate, but if so, they’ll have veto power over every one of Trump’s judicial and executive nominees until 2020.
Republicans are struggling to make the case for retaining power after two years of unified control of the government. The president’s party usually loses seats during the first midterm election, and the unpopularity of both Trump and the GOP’s legislative agenda isn’t helping. Not only did the Affordable Care Act largely survive an all-out push to repeal it, but many Republican lawmakers are now being forced to defend their votes to strip coverage requirements for people with pre-existing conditions. Most voters also rightly think that the GOP’s tax-cut package, once touted as a near-certain midterms boon, was simply a handout to the rich and powerful.
Thus, Trump is trying a different message with voters: a virulent mélange of nationalism and authoritarianism, largely centered on the caravan of several thousand migrants traveling toward the U.S. from Central America. He has likened the caravan to a foreign “invasion,” and is using it to justify extraordinary measures. He ordered more than 5,000 troops to the border with Mexico on Monday, though their mission is limited and largely theatrical. He’s also reportedly mulling an executive order to close the southern border to asylum-seekers.
Then came Tuesday’s news. Trump is considering an executive order that would unilaterally reinterpret the Fourteenth Amendment to scrap birthright citizenship, a bedrock principle of post-emancipation American democracy. “It was always told to me that you needed a constitutional amendment,” he told a reporter. “Guess what? You don’t.”
Elected officials have a habit of over-promising and under-delivering during campaign season, but Trump’s moves over the past two weeks go far beyond that. He’s deployed the military within the U.S. against a phantasmal threat. After one of his supporters was arrested for sending mail bombs to his political adversaries, the president responded by warning that he “could tone up” his rhetoric even further. Now he’s asserting the power to single-handedly narrow the definition—and thus the protections—of American citizenship. In effect, Trump is posing a question to the American electorate: What level of racist authoritarianism are you willing to accept?
Any attack on birthright citizenship in particular should set off klaxons about American democracy. Republican politicians have long railed against the practice because it also applies to undocumented immigrants who have children on U.S. soil. During the 2016 elections, multiple GOP presidential candidates suggested that they could take steps to curtail it in some fashion through legislation. Michael Anton, a former Trump national-security aide, took it a step further earlier this year by asserting in a Washington Post op-ed that the president could instruct the federal government to disregard birthright citizenship by executive fiat.
Anton is not a legal scholar, and it showed. The Fourteenth Amendment’s Citizenship Clause is short and unequivocal: “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.” Anton argues that undocumented immigrants don’t qualify because they are not “subject to the jurisdiction” of the United States. But legal scholars widely agree that that provision was meant to exclude the children of foreign diplomats, who enjoy immunity from U.S. laws and therefore aren’t generally subject to federal jurisdiction.
Another argument raised by Anton is that the Fourteenth Amendment’s drafters never meant for the Citizenship Clause to apply to undocumented immigrants in general. Their conversations during the ratification debate suggest otherwise. “Nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens,” former Texas Solicitor General James Ho wrote in a 2006 analysis of the drafters’ views of the clause. “To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.” Ho is no left-wing firebrand, either: Trump successfully nominated him to the Fifth Circuit Court of Appeals earlier this year.
Many portions of the Constitution are subject to considerable debate and interpretation by the American legal community. The Citizenship Clause isn’t one of them. In the 1898 case U.S. v. Wong Kim Ark, the Supreme Court ruled that the son of two Chinese immigrants who was born on U.S. soil had automatically received American citizenship at birth, even though the Chinese Exclusion Act meant that his parents could never acquire it themselves. That ruling remains the law of the land 120 years later. No subsequent ruling has challenged its expansive view of the clause, and few legal scholars have ever disputed the prevailing consensus on it.
Beyond the flawed legal arguments is a much more disturbing perspective on American citizenship. The Citizenship Clause was partially designed to overturn the Supreme Court’s notorious 1857 ruling in Dred Scott v. Sandford, which held that descendants of African slaves could never become U.S. citizens. The Radical Republicans who drafted the Fourteenth Amendment hoped to build a truly multiracial democracy on the ashes of the slaver aristocracy that had lost the Civil War. They sought to roll back racist state laws passed after emancipation that tried to restore the old order with a new face. The Fourteenth Amendment exists to ensure that American citizenship is forever removed from the realm of public debate, that its rights and protections would never again depend on the fleeting whims of a transitory electoral majority.
Establishing a universal baseline for citizenship pushed the country far closer toward the ideal of an American citizenry that transcends race, class, and caste. Trump and his allies are hostile to that notion, to say the least. As president, he’s made common cause with white nationalists and embraced a blood-and-soil view of nationality. It’s no secret that Trump’s immigration policies are rooted in antipathy for non-white immigrants. “Why are we having all these people from shithole countries come here?” he allegedly asked lawmakers in January at the White House in January when they discussed deportations for long-term immigrants from Haiti and some African countries. “Why do we need more Haitians?” Trump added. “Take them out.”
In this worldview, a caravan of migrants fleeing violence and hardship in Central America isn’t a test of America’s compassion or even just a matter best handled by existing asylum laws. It’s a demographic threat to the American polity. Trump and his allies have instead wielded every ancient trope used to denigrate would-be immigrants. Fox News hosts and guests have wondered aloud if they would bring infectious diseases into the country. Trump baselessly asserted that there were “some bad people” among them, including “hardened criminals.” He also warned about the presence of “unknown Middle Easterners,” an apparent racist shorthand for terrorists, before later admitting he had no proof. (Reporters on the ground with the caravan have described a diverse, unthreatening crowd of men, women, and children of all ages.)
Inflaming these hatreds can have deadly consequences. In recent weeks, Republican lawmakers and the conservative media ecosystem pushed a narrative that the caravan had been encouraged by Democratic officials, liberal activists, and billionaire investor George Soros to disrupt the midterms. Last week, federal agents arrested an ardent Trump supporter who allegedly sent mail bombs to Soros, the homes of two former presidents, and almost a dozen other political adversaries of the president. On Saturday, a white-nationalist gunman in Pittsburgh posted online that he “couldn’t sit by” while a Jewish nonprofit group continued to “bring invaders in that kill our people.” He then stormed into a nearby synagogue and killed eleven people.
The wave of violence and attempted assassinations have not deterred Trump. If anything, he’s grown bolder in his efforts to impose a narrower, ethnocentric vision on the bounds of American civic life. By insisting that he can revise the Constitution’s definition of citizenship through an executive order, the president is assuming unprecedented authority to decide who is and isn’t an American. Next week’s elections will technically determine the future composition of the House, the Senate, and of state governments. They may also decide the future composition of America itself.