Immigration Article of the Day: Trump V. Barbara and the Allegiance Red Herring by Marissa Jackson Sow
Trump V. Barbara and the Allegiance Red Herring by Marissa Jackson Sow, University of Richmond, United Nations - Office of the High Commissioner for Human Rights
Abstract
In support of its unsuccessful fight against birthright citizenship, the Trump Administration and its supporters in Congress and the legal academy made much ado about whether or not children born in the United States to undocumented immigrant parents have what they view as the requisite level of allegiance to the United States to be eligible for jus soli citizenship under the Citizenship Clause of the U.S. Constitution’s Fourteenth Amendment—a strategy similar to those used against Asian immigrants and Asian-Americans seeking U.S. citizenship at the turn of the 20th century. This Essay takes a closer look at the concept of allegiance and what it means to have allegiance to the United States. Mainstream understandings of allegiance are of loyalty, and these understandings of allegiance have been leveraged by American government officials to exclude undesired migrants from U.S. territory, from U.S. citizenship, and from equal protection of federal and state laws.
The United States Supreme Court, however, defines allegiance as an agreement of exchange between an individual present in the United States and the United States government—of protection by the State for obedience of the laws of the United States and the localities of which the individual is resident. This definition of allegiance reveals the Trump Administration’s argument that U.S.-born children hold allegiance to their immigrant parent’s home countries to be a red herring in a debate that—while fictitious enough on its own—is and was easily resolved through careful readings of relevant federal court decisions and, most importantly, very cursory readings of the Citizenship Clause.
The article further explores the emerging judicial response to these policies through an analysis of Saghafi v. Edlow and Doe v. Trump, where federal district courts concluded that USCIS's blanket adjudicative hold policy likely conflicts with Congress's statutory mandate requiring the agency to adjudicate immigration benefit applications. By examining the interaction between executive authority, administrative agency discretion, and congressional directives, the article argues that these decisions establish meaningful limits on USCIS's ability to suspend adjudications indefinitely through internal policy memoranda. Finally, the article discusses the practical consequences of these policies for immigration practitioners and affected applicants while considering the broader implications for administrative law, judicial review, and the future of immigration adjudications.
