Citizenship after Trump

Peter J. Spiro
Charles R. Weiner Professor of Law
Temple University

Editorial credit: Ryan Rodrick Beiler / Shutterstock.com

Citizenship after Trump

The advent of the Trump Administration has obviously disrupted immigration policy in the United States. We are in for a wild and (if the first months are any guide) scary ride through the next four years, more so with respect to immigration than perhaps any other policy sphere. Although Trump’s unpredictability and lack of core ideological principle supply some slight possibility of immigration reform on a Nixon-in-China model, the early returns are not promising. The coterie around the President seems committed to restrictionist policies, as is his electoral base. Immigrant advocates will almost certainly be in a defensive posture during this administration. The focus will be on beating back anti-immigration initiatives in the courts and the streets, with the response to the initial travel ban and refugee suspension as a model. There will be few, and possibly no, opportunities to adopt more forward-looking US immigration policies.

Citizenship law and practice is shaping up to be another story. Although Donald Trump as a candidate vowed to scale back birthright citizenship, it did not feature prominently among his campaign promises. Since taking office, he has not highlighted any citizenship-related practice, birthright citizenship included. Immigration and citizenship policy have been successfully decoupled in the past, even as restrictionist constituencies have grown more politically powerful. Relative to immigration law and policy, there is a “not broken” quality to US citizenship policy which, true to historical traditions, remains generous. To the extent there are problematic elements to US nationality law, this is not the time to be fixing them.

But the Trump debacle will accelerate broader challenges to citizenship as an institution. These challenges are apparent in both a domestic and a global frame. Domestically, citizenship is less reflective of social solidarities than at any time in modern US history. Extreme political polarization has been well documented. The polarization is also sociological in the sense that Americans as such no longer share a common identity or sustain mutual trust. Citizenship no longer maps out on an American national community. Meanwhile, citizenship at the global level is becoming increasingly instrumentalized; many people now seek or retain citizenship not as a measure of or aspiration to belonging but rather according to the benefits it brings to its holders. The policies of the Trump Administration and other populist regimes will accelerate this trend. For now, these trends validate immigrant advocacy efforts to lower barriers to citizenship. In the long run, however, social justice theorists should be looking to vehicles for protecting rights that are not citizenship contingent.

US Citizenship Policy: Out of the Crosshairs

The Trump presidency is fixated on increasing barriers to immigration. There is the literal barrier of a wall that Trump has promised to build on the border with Mexico. Although the parameters remain unclear, enforcement against unauthorized immigrants is being ramped up. There are indications that the Trump Administration will work with congressional allies to scale back legal family-based immigration and non-immigrant employment-related admissions. The extent to which Trump will pursue mass deportations is unclear, and corporate interests may be able to block efforts to limit legal immigration. Immigrant advocates are more likely to enjoy success in the courts than in the political branches. Although the courts have historically deferred to the President and Congress in the immigration context, the Trump regime is sufficiently discontinuous to prior presidencies so as to destabilize judicial precedent. But barring an extreme pivot on Trump’s part, there is unlikely to be much room for legislative collaboration on immigration reform.

The same holds true for citizenship policy. But there are two major differences between citizenship policy and immigration policy. First, in the United States, unlike in some other immigrant destination states, citizenship and immigration have been politically decoupled to a large extent. Second, citizenship policy is not in crisis. Although there are deficiencies in current US citizenship law and practice, they are at the margins. In a hostile political environment, it makes little sense for immigrant advocates to trigger battles that they may not win. As a result of these twinned phenomena, the prospects for changes in the US citizenship regime in the near to medium term are low – thankfully.

Several factors have contributed to the decoupling of immigration and nationality policy. Although it has been subject to historical and regional variation,[1] as a general matter, the United States is culturally oriented to the assimilation of immigrants. That assimilation has been enabled by the lack of a hard ethnic or religious national identity. A racially white identity was breached by the outcome of the Civil War, which established citizenship for blacks and constitutionally enshrined birthright citizenship for all persons born in the United States. The terms of naturalization have been contested at various turns, especially before the advent of federal immigration controls in the late nineteenth century, but its availability has not – racial qualifications aside, which were not fully eliminated until 1952, when persons of Japanese descent were made eligible to naturalize. Naturalization procedures triggered intense controversy in the early 1900s in the wake of widespread fraud, with electoral consequences, which led to the federalization of the process that had previously been undertaken by the states. During the same period, literacy, language, and civics requirements were also added. The nationality law was fully codified in 1952. Nationality practice has remained remarkably stable during the intervening 60 years.

Politically, this equilibrium has served the interests of a broad range of constituencies. Immigration policy can be modulated to accommodate some groups while rejecting others. Today, for example, the presence of unauthorized immigrants from Mexico and other Latin American states can be denounced without endangering the admission of, say, Italian and Irish nationals, who can be slotted for legal immigration channels (and to the extent they violate immigration controls do so in numbers that can be politically ignored). Political restrictionism does not bump up against established ethnic constituencies. Nationality laws, by contrast, are much less amenable to variable application. Raising the bar on the naturalization of Mexican nationals would also raise the bar on the naturalization of nationals from countries that are not perceived to be part of the immigration “problem” and who may be politically powerful. Moreover, naturalization by definition involves only legal immigrants. In recent decades, legal immigration has not been a political flashpoint: It has been crowded out by unprecedented levels of unauthorized immigration. Political proponents of crackdowns on unauthorized immigration have thus not pursued any serious parallel efforts to tighten naturalization. Even if the Trump era results in reductions in the level of legal immigration, the acquisition of permanent residence, not citizenship, would supply the choke point.

The one exception to these political dynamics is birthright citizenship as applied to the children of unauthorized immigrants. Since the mid-1990s, restrictionists have proposed restricting territorial birthright citizenship to the children of legal immigrants. These efforts have attracted high-profile attention. Legislation scaling back birthright citizenship has been introduced in every session of Congress for the last twenty years. Despite the swelling of anti-immigrant sentiment, these proposals have made little headway. Not a single bill has made it over the first legislative hurdle (a vote out of congressional committee). Donald Trump expressed support for the restriction of birthright citizenship during the 2016 campaign, but it does not appear to figure in his agenda as president.

The failure of birthright citizenship amendments can also be attributed to the country’s assimilationist norms. Even though the US Supreme Court has never directly ruled on the question, citizenship has been extended to all children born in the United States as a matter of administrative practice. It appears to be well entrenched as a matter of constitutional culture.

US nationality practice is stable and likely to remain so. This stability is at a level that affords access to citizenship. The near-absolute territorial birthright citizenship practice is generous in comparative terms. Although the practice is not unique among states (as some opponents claim), it favorably compares to all European states, none of which applies this expansive form of first-generation jus soli.[2] Barriers to naturalization have been and remain low in comparative perspective. Residency is pegged at five years as a permanent resident in most cases. Language and civics requirements are administered in ways that do not demand full assimilation with a test that is not especially exacting. These requirements may deter some otherwise eligible applicants from applying, but they also compare favorably to naturalization processes in most immigrant destination states. The sole outlier feature of US citizenship practice is the naturalization fee, which at $725 is high in comparative perspective, but waivers are available on a means-tested basis. Perhaps the greatest deficit is the near non-existence of federal programs to encourage naturalization, for instance, federally-sponsored language and civics courses.

To the extent there are imperfections in the process, now is probably not the time to solve them. To take one minor example: the naturalization oath is notoriously archaic in its phrasings. It continues to include a renunciation clause even though, under longstanding US practice, the retention of prior citizenships is accepted. [3] But to provoke a debate on the content of the oath would be to draw unnecessary attention to an essentially non-consequential element of the nationality regime as well as to the toleration of multiple nationalities. A similar argument could be made with respect to the civics requirement, which tests rote memorization only. But any effort to reopen the content of the examination would invite another front on the culture wars at a time when those with a backward-looking, chauvinistic view of national identity control the political branches of government. Attempts to improve citizenship policy could backfire.

That said, there could be opportunities on narrow issues with strong humanitarian underpinnings that could be resolved even in the face of extreme polarization. For example, a campaign has been underway to have the Child Protection Act of 2000 apply retroactively to foreign adoptees brought to the United States before the date of its effectiveness who, because they lack citizenship, have faced deportation to countries in which they have not lived since infancy.[4] Because it involves a small number of individuals and a simple legislative fix, this kind of campaign could succeed even in immigrant-skeptical political conditions.

It will be important to monitor the administration of naturalization laws to protect against ad hoc exercises of negative discretion, parallel to the kind of enforcement discretion that is being negatively exercised against unauthorized immigrants. But the risks in the naturalization context seem lower. In addition to the political distinctiveness of naturalization relative to immigration policy, the bureaucratic culture of the component element of the Department of Homeland Security responsible for naturalization, US Citizenship and Immigration Services (USCIS), has tended to be more immigrant-friendly than the enforcement arm, US Immigration and Customs Enforcement (ICE), whose sole mission is to apprehend and remove unauthorized immigrants (a mission it appears to be both zealously and capriciously pursuing during the early months of Trump). Vigilance will also be in order at the state level with respect to documentation. Even before the Trump victory, the state of Texas was reported to have denied birth certificates to children of unauthorized immigrants, from which the state relented only in the wake of a lawsuit.

The End of Citizenship Solidarities at Home

Relative to immigration policy, then, citizenship should figure hardly at all for US immigration advocates in the short to medium term. Relative to the potentially catastrophic developments in US immigration law, nationality law’s deficits are minor, and there is good reason to expect them to stay that way, Trump’s radicalism notwithstanding. But citizenship as an institution – in the United States and elsewhere – is rotting away at its core. The Trump phenomenon both reflects and is accelerating the trend. The erosion of citizenship solidarities poses one of the great challenges of our time. Conventional responses revolving around civic education and other top-down efforts are unlikely to reverse the decline. Rather, at least some efforts should now be targeted at redirecting citizenship energies to the subnational and global levels as social membership is redefined along these new dimensions.

Globalization’s pincer pressures on the state from above and below are often invoked. In the wake of populist electoral successes, some are now proclaiming the revenge of the state. Citizenship suggests the prematurity of these pronouncements. Citizenship now reflects a lower level of solidarity than at any time in the modern era. This has resulted from a variety of social trends that have shifted the orientation of community. As states attempt to reassert sovereign identity and border controls, citizenship is also being instrumentalized; individuals are increasingly seeking citizenship solely for the value of the passport that comes with it, on a “membership has its privileges” basis. These trends will be difficult to reverse.

Political polarization in the United States is understood to be at record levels. This is reflected in daily polls on almost every controversy, with high numbers of Republicans holding one view mirroring high numbers of Democrats having the opposite view. The presidential election itself revealed these disparities beyond party affiliation. In such cities as New York, Los Angeles, Chicago, and Philadelphia, Hilary Clinton won by margins of 50 percent or more. As “fake news” takes hold on the internet, those with opposing viewpoints no longer even work from the same factual premises.

The polarization transcends politics. An urban Clinton voter has very little in common with a rural or rust-belt Trump voter. They are differently situated in almost all respects. In terms of citizenship solidarities, the shift can be demonstrated through comparative domestic and transnational pairings. It doesn’t take rigorous empirical work to suppose that a New Yorker who supported Clinton feels more in common with a Londoner who opposed Brexit than with a Kentuckian who voted for Trump. The New Yorker and Londoner may be more likely to have interacted, and would likely be more comfortable in a social engagement in any case. The cultural referents that mapped out onto national boundaries have dissipated. With sports and Thanksgiving as notable exceptions, there is little in the way of shared knowledge and traditions that are distinctly national, in the US context perhaps less so than in other states. The social glue that once bound citizens to each other across other divisions has grown old and brittle, and it is failing.

In theory, the erosion of citizenship solidarities could be addressed through revitalized civic education, rebuilding, in effect, the common data set that was at one time broadly shared by most Americans. That is highly improbable in the face of certain disagreement on content.[5] Civic education is the unchallenged fodder of liberal citizenship campaigns. But given the political impracticality of national civic education, precisely because of the lack of social solidarity, it seems an unpromising investment of political capital. Ditto for proposals to revive some form of national service. By bringing male citizens from all backgrounds together in an intimate and totalizing institution, conscription was an important foundation stone in the nation-building project. But revived national service is highly improbable. On top of the expense involved and the obsolescence of manpower for military purposes, there is no evidence that citizens are now willing to sacrifice a year or two of their youth to the national community.[6]

The better response would be to build on social solidarities at the local and regional level. These solidarities continue to be organic. Some aspects of community will always be spatial; no matter how much of our lives moves to virtual realms, there will always be corporeal elements of human existence that will require cooperation in physical spaces. There is also a natural tendency within countries (as zones in which relocation is not legally restricted) to sort, which leads to an aggregation of like preferences. This sorting may become more pronounced in the wake of greater polarization, which will work a feedback loop. Public and private efforts to cement subnational identities are more likely to bear fruit than national ones, although serious challenges remain at even the local level in the face of economic inequality and other fragmenting demographics. It would be more difficult to impose required subnational service – a kind of local draft – insofar as it would operate like a tax that could be easily evaded through relocation.

Subnational citizenship, on the other hand, is a more promising vehicle through which to cement subnational community. A bill was introduced in the New York state legislature last year which would denominate state residents as state citizens regardless of status under national immigration laws. Although decoupled subnational citizenship would be largely symbolic, it would supply a focal point for establishing rights as full members of the community. In this respect, the practice in some states over the last twenty years to extend public benefits regardless of immigration status reflects a distinctive subnational community decoupled from – and possibly stronger than – the national one. This phenomenon could be brought into sharper relief should aggressive Trump moves against so-called sanctuary cities provoke strong local defense of unauthorized immigrants. Indeed, the general sense of local solidarity against the Trump administration (a kind of circling of the wagons) could prove a loose parallel to the kind of national community consolidation well understood to occur during war.

Citizenship Instrumentalized

At the same time that national citizenship is being degraded from within, it is also being detached from community at the global level. Although the range of rights distinctively attached to citizenship has narrowed considerably, the resurgence of populist politics is enhancing the value of the locational security and mobility rights associated with premium citizenships. The Trump Administration’s early inclination to follow through on restrictionist campaign pledges will supply an incentive for naturalization as a form of insurance against deportation and possible discrimination against non-citizens in the provision of benefits and in other ways. As with other material incentives for citizenship, this will increase the incidence of instrumental naturalization, that is, the acquisition of citizenship for reasons not reflected (or reflected less) in social membership and identity. Among those already possessing US citizenship, the hostility of the Trump Administration to progressive (and possibly democratic) values increases the incentive to acquire other citizenships where available, as a kind of hedge against further social and political degradation of US political and social systems.

This is a variation on economically instrumentalized citizenship acquisition. For example, Argentine and Chilean nationals acquired Spanish and Italian citizenship by descent as a vehicle for expanding economic opportunity in the wake of financial crises in Latin America during the early 2000s.[7] Perhaps the most dramatic example of this phenomenon will come in the wake of the United Kingdom’s exit from the European Union. With Brexit, British citizens will lose settlement rights in other EU countries. British citizens will now have an incentive to acquire other EU nationalities where eligible. As many as ten percent of all British citizens are eligible for Irish citizenship through descent. Applications for Irish citizenship have spiked in the wake of the Brexit vote.[8] Finally, global political turmoil is likely to increase the market for investor citizenship programs. Diversifying citizenship portfolios – actual terminology now used by private firms marketing citizenship programs in such countries as Malta, Cyprus, and St. Kitts – is becoming more of a priority among transnational elites to facilitate mobility and hedge against home-country political instability.

These instrumental uses of citizenship will also contribute to the decoupling of citizenship from identity. To the extent that citizenship is acquired for protective purposes and not affective ones, the community defined by citizens will fray. Although not as dramatic as the collapse of mutual trust and solidarity among citizens in a domestic frame, the strategic acquisition of citizenship is becoming more familiar in the face of global political turbulence. As political and economic shocks increase the number of episodes highlighting what is in effect citizenship arbitrage, an understanding of citizenship as having an arbitrary, luck-of-the-draw quality will challenge the traditional understanding of citizenship as a marker of social membership.

This challenge will grow notwithstanding the globalization backlash. On the one hand, the populist resurgence is widely understood as a retreat to nationalist impulses. On the other hand, populism itself has gone transnational (witness the high-profile links among right-wing and restrictionist national political parties). Sharpening political divisions seem drawn not so much around nationality as around class, race, and ideology. The Trump voter in Kentucky is showing an affinity to Brexiters and Vladimir Putin, all of them stacked up against cosmopolitan elites. As political alliances cut across state lines rather than along them, citizenship will become less, not more, salient to political identity. Community is inherent to the human condition. For centuries, the territorial state was a preemptive location of community. That primacy is now under intense stress. Ask an individual to whom she owes her loyalty. It may no longer be to her fellow citizen.

The best response to these developments, once again, does not lie in the revival of national citizenship. In theory, citizenship boundaries could be shored up to better map out onto social membership. In fact, liberal political theorists such as Ayelet Shachar have proposed citizenship law fixes to better align citizenship status to citizenship sentiments. For instance, she argues that citizenship by descent should be limited for those born abroad so as to police against “hollow citizenship.”[9] These fixes are oriented towards establishing a “genuine link” threshold to citizenship status, that is, requiring that citizenship eligibility be constrained by actual social attachments.[10] This effort to bolster citizenship’s solidarities is discordant with autonomy values to the extent it constrains individual self-definition. Who can say that the Argentine of Italian descent does not genuinely identify with her European ancestor, especially when Italy seems agreeable to having her as a member? The approach is bound to fail in any case. Genuine links are easily established in the wake of globalization. When the European Commission pushed back against Malta’s investor citizenship program, Malta agreed to adopt a one-year residency requirement, explicitly denominated as a period in which to establish genuine links. In practice, all that is required is a rental property and other nominal contacts (gym memberships included). Physical presence requirements are minimal. As more countries exploit their sovereign discretion to sell citizenship and others loosen the parameters for citizenship by descent, it will be difficult to shore up the institution against increasing instrumentalization.

Better then to pursue global solidarities than national ones. If conservatives are working to cement global alliances, progressives should be too. This is already happening under other labels in the political realm, for instance, among those who work to protect constitutional democracy and the rule of law. How it is accomplished under the moniker of citizenship is a more difficult proposition. There is not a “world citizenship” that encompasses all of humanity, although that may have its place as well. The purpose here would be to accelerate and institutionalize transnational solidarities. This is already happening from the bottom-up among identity groups as they work to advance a rights agenda for their constituencies, building transnational solidarities in the process. How it might be approached programmatically across groups is a more difficult proposition. International organizations, philanthropists, and norm entrepreneurs may be able to facilitate an understanding of transnational solidarities as a kind of citizenship. For example, international organizations (public and private) could further institutionalize direct representation by non-state groups.

Conclusion

The endpoint of this analysis is an unapologetic variation on the trope that the state is under assault from above and below. In the long run, the state is unlikely to persist as the primary platform for the redistribution of resources and the protection of rights. The modern state as a form of association is not well adapted to the new dimensions of social organization. It was mostly about the protection and projection of power across space. Power was correlated to population and territory, and external territorial threats promoted a sense of community. Although territorial location remains an important locus of identity, the imagined community of the territorial nation-state is a legacy phenomenon in the face of other solidarities. These solidarities, at the local and global levels, will be more promising vehicles for citizenship-like activity going forward.

In the meantime, citizenship policy in the United States continues to be largely insulated from the political upheaval impacting immigration policy. US citizenship is likely to remain accessible to legal immigrants. Given the insecurity increasingly associated with non-citizen status, those who are eligible for citizenship are likely to access it – and would do well to pursue it – at higher rates than in the past.


[1] Roberto Suro, “California Dreaming: The New Dynamism in Immigration Federalism and Opportunities for Inclusion on a Variegated Landscape,” Journal on Migration and Human Security 3 (2015): 1-25.

[2] See Patrick Weil, “Access to Citizenship: A Comparison of Twenty-five Nationality Laws,” in Citizenship Today: Global Perspectives and Practices, ed. Alexander Aleinikoff and Douglas Klusmeyer, (Washington, DC: Carnegie Endowment for International Peace, 2001). Although the jus soli approach is unusual among Organisation for Economic Co-operation and Development (OECD) states, it is typical of Western Hemisphere states. See Olivier Vonk, Nationality Law in the Western Hemisphere: A Study on Grounds for Acquisition and Loss of Citizenship in the Americas and the Caribbean (Leiden, The Netherlands: Brill Publishers, 2014) 10-11, (30 out of 35 Western Hemisphere states have automatic jus soli acquisition at birth).

[3] “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen….”

[4] See, e.g., Liam Stack and Christine Hauser, “A South Korean Man Adopted by Americans Prepares for Deportation,” New York Times, November 1, 2016.

[5] On the last naturalization test redesign, which did not result in major changes of format or content, see Migration Policy Institute, High Stakes, More Meaning: An Overview of the Process of Redesigning the US Citizenship Test (Washington, DC: Migration Policy Institute, 2008).

[6] There is an interesting contrast here to the Mormon Church, which continues without the power of law to extract two-year missionary service from its members as they enter adulthood.

[7] See Yossi Harpaz, “Ancestry into Opportunity: How Global Inequality Drives Demand for Long-Distance European Union Citizenship,” Journal of Ethnic and Migration Studies 41 (2015): 2081.

[8] The recent Trump Administration travel ban on nationals of six primarily Muslim countries provides a similar example on a smaller scale. Nationals of those states who also have nationality in a non-listed state are not covered by the ban. This would, for example, give an Iranian citizen, who is a permanent resident in Canada, an incentive to acquire Canadian citizenship to facilitate continued access to the United States.

[9] Ayelet Shachar, The Birthright Lottery (Cambridge, MA: Harvard University Press, 2009).

[10] The “genuine link” vocabulary is drawn from international law’s putative requirement that a state have a genuine connection to a national for purposes of representing the individual’s interests before another state. See The Nottebohm Case (Liecht. v. Guat.), 1955 ICJ 4 (Apr. 6).

Author Names

Peter J. Spiro

Date of Publication April 5, 2017