With President Trump’s recent announcement on his plans to end birthright citizenship through an executive order, questions have arisen in recent news as to both the underlying reasons and the practical implementation of such a declaration.
President Trump asserts that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” While it is true that the majority of the world’s nations do not offer automatic citizenship to those born within their borders, there are at least 30 other countries, including Canada and Mexico, where children born on their soil are granted automatic birthright citizenship. On the other hand, over the past few decades, countries that once did so, including Australia and the U.K., have repealed those policies, with others considering changes.
Children born in the U.S. are granted automatic birthright citizenship through the application of the 14th Amendment’s Citizenship Clause, which 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.” The application of the Citizenship Clause to children of foreign nationals was addressed by the Supreme Court in 1898 in United States v. Wong Kim Ark, in which the Court ruled 6-2 that a child born in the U.S. of Chinese parents, who at the same time had a permanent domicile and residence in the U.S., automatically became a U.S. citizen. The Court however did not address whether this would extend to children born in the U.S. to parents that were present without valid status.
Although it may not be possible to change the Constitution through a planned executive order, it is within the power of Congress to define the scope of the Citizenship Clause through legislation without amending the Constitution (as long as, of course, it does not run afoul of it). Bills have been introduced from time to time in Congress, challenging conventional interpretation of the clause, albeit unsuccessfully (including the Birthright Citizenship Act of 2009 and Birthright Citizenship Act of 2011). On the heels of President Trump’s announcement, Senator Lindsey Graham stated that he would introduce legislation in Congress to accomplish the objectives of the proposed executive order.
While it is almost certain that there will be strong pushback to the idea of eliminating birthright citizenship, the thought that it could one day become reality brings into the question how this might be implemented. United States Citizenship and Immigration Services (USCIS), the arm of the U.S. Department of Homeland Security that administers the country’s naturalization and immigration systems, would be dealing with a new level of bureaucracy to determine whether at least one parent was in the U.S. legally at the time of birth.
Given the current environment and attitude towards immigration, one may question the policy objectives behind the elimination of birthright citizenship. If the aim is to prevent those granted automatic citizenship after their parents entered without inspection or valid status from receiving benefits as a U.S. Citizen, including someday petitioning for their once-or currently-undocumented parents, how does it address those that come on a valid visitor (or other non-immigrant) visa and do the same? How would this affect parents who entered without inspection or valid status but were later granted valid status through the asylum process? Many questions are left unanswered, and it remains to be seen if and how plans for the elimination of birthright citizenship will proceed.
The United States has long been a worldwide leader, setting examples for other countries, and should continue to do so. The American Dream is rooted in the Declaration of Independence, which proclaims that all men are created equal with the right to life, liberty and the pursuit of happiness. James Adams defined the American Dream in 1931 in his book The Epic of America: “that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement . . . a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.” Thomas Wolfe said, “…to every man, regardless of his birth, his shining, golden opportunity ….the right to live, to work, to be himself, and to become whatever thing his manhood and his vision can combine to make him.” The removal of birthright citizenship, disadvantaging innocent children born here through no fault of their own, seems to fall short of these ideals.