By Lance Simmens
One of many promises that President-elect Trump committed to carry out while on the campaign trail would be to “absolutely” halt birthright citizenship once in office. The “birthright citizenship” policy ensures that anyone born in the United States automatically becomes an American citizen, regardless of whether or not their parents are legally in the country.
Birthright citizenship is the constitutional guarantee that a person born on U.S. soil will be a U.S. citizen. The idea of birthright citizenship developed out of the English common-law principle of jus soli, literally “right of soil.” In practice, this means that with very few exceptions, anyone who is born on U.S. soil becomes a U.S. citizen at birth. Critics have argued that birthright citizenship is ripe for abuse by encouraging undocumented immigration or “birth tourism.” However, there is no evidence that the system is being widely abused. Some critics have further argued that birthright citizenship is not actually required by the 14th Amendment and could be restricted by Congress or the president without the need for constitutional amendment. As Jeremy L. Neufeld and Ricky Schneider point out in their article “Birthright Citizenship As Law and As Policy,” this argument runs counter to long-standing precedent and the vast consensus among legal scholars, including originalists (niskanencenter.org/birthright-citizenship-as-law-and-as-policy/).
The 14th Amendment to the Constitution, ratified post-Civil War in July 1868, says 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 and no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
On his campaign website, Trump said he would issue an executive order on the first day of his presidency making it clear that the federal government would “require that at least one parent be a U.S. citizen or lawful permanent resident for their future children to become automatic U.S. citizens.” Whether or not this could be accomplished vis a vis an executive order is questionable but surely it would certainly enable considerable litigation.
According to the American Civil Liberties Union, the “14th Amendment’s citizenship clause provides there is only one group that is not subject to the jurisdiction of the U.S. and thus does not attain birthright citizenship: children born to foreign diplomats who are protected by sovereign immunity and are therefore not subject to the jurisdiction of the U.S. … and only constitutional amendments, not executive orders or legislation, can change the Constitution.”
Hence, birthright citizenship is fundamental to American life, according to the ACLU. “In a nation committed to the principles of equality, fairness, and opportunity, every child born in the US would be born with the same rights as every other child. The alternative — creating a permanent, multigenerational subclass of people born in the U.S. who are denied full rights — would repeat one of the worst errors in American history … The 14th Amendment ensures that no politician can ever decide who among those born in our country is worthy of citizenship. In the face of the Trump administration’s threats, the 14th Amendment’s protections continue to safeguard the rights of every person born in this country.”
Should the proposition to end birthright citizenship materialize, the implications on immigration and the societal landscape in the United States could be significant. The shift would likely alter immigration patterns considerably. By removing the incentives of automatic citizenship for children born in the U.S., the dynamics of immigration might change, affecting decisions of those who may consider migration.
If birthright citizenship were to be rescinded, the number of undocumented immigrants could paradoxically increase. Children who would otherwise automatically qualify for U.S. citizenship could find themselves in an unclear legal status, effectively adding to the undocumented population.
On a bureaucratic level, the intricacies of citizenship verification would necessitate a larger administrative apparatus. All parents would need to provide documentation proving their own citizenship, replacing the current straightforward process with one full of potential legal hurdles and verification challenges.
The social and economic implications of such changes affect families and communities. With the possibility of citizenship uncertainty, mixed-status families could face new stresses, leading to heightened vulnerabilities and instability. The potential for increased undocumented status among individuals could limit access to education, employment, and social services, generating systematic constraints and potentially hindering both individual and communal economic growth.
The success of birthright citizenship in encouraging and facilitating assimilation of immigrant communities is widespread. Denying citizenship to the children of immigrants creates a sense of alienation and is one of the contributing factors to the lack of assimilation in Western European countries such as France and Belgium.
The Trump administration is determined to seek ways to circumvent the generally accepted notion that birthright citizenship is firmly embedded in our Constitution and cannot be summarily sidestepped through any executive or legislative actions. Let the battle commence.