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In his inauguration In his speech, Donald Trump promised that in his administration “we will not forget our Constitution.” Before the day was over, Trump signed an executive order that, if implemented, would seemingly end birthright citizenship, guaranteed by the 14th Amendment. According to the plain text of the amendment, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump claims that this does not mean what it appears to mean.
Under Trump’s order, starting next month the federal government will refuse to issue “documents recognizing U.S. citizenship” (most likely passports) to newborns unless one of their parents is a citizen or permanent resident of the United States. Therefore, children born in America to illegal immigrants will be excluded. But the same also applies to about three million people living in America on exchange, work or student visas.
Relatively few rich countries automatically grant citizenship to everyone born on their territory (although Canada does, as do most Latin American countries). America began doing this at the end of the Civil War. The Constitution was subsequently amended to abolish Dred Scott Resolution of 1857, which declared that blacks were not Americans. The Fourteenth Amendment guaranteed that freed slaves and their children would henceforth become citizens.
The Trump administration’s argument is that the Fourteenth Amendment “has never been interpreted to extend universal citizenship to every person born within the United States.” In the narrow sense, this is true. US-born children of foreign diplomats, who enjoy immunity from prosecution, have always been excluded from US citizenship under the Jurisdiction Clause. Until the passage of the Indian Citizenship Act in 1924, this was the case for some Native Americans. But Trump appears to believe the jurisdiction clause allows him to exclude many more people.
To justify this, he relies on fringe thinking, which has gained followers on the right since the early 1990s. Republican representatives in Congress have repeatedly introduced laws ending birthright citizenship, though none have made it out of committee, notes Peter Spiro of Temple University in Philadelphia. The argument presented is that when the Framers wrote the word “jurisdiction” they actually meant “loyalty.” This “just seems like reverse engineering,” Spiro says.
Since 1898, when United States v. Wong Kim Ark After the Supreme Court decided, American law and practice hold that birthright citizenship applies to children of foreigners, says Alison LaCroix of the University of Chicago Law School. In this case, an American-born child of Chinese immigrants in San Francisco sued when he was barred from returning to America. LaCroix says the president cannot overturn more than a century of precedent on how to interpret a constitutional amendment by executive order. Had it been implemented in the 1960s, Trump’s ruling would have prevented Kamala Harris from becoming a citizen.
Trump’s order seems unlikely to survive legal challenges, even with a friendly Supreme Court. But even if that happens, its implementation will be difficult. When applying for passports, Americans only have to provide a birth certificate to prove their citizenship; These do not now record the nationality or legal status of the parents. Birth certificates are also issued by local governments, so this is unlikely to change soon, at least in Democratic states. To exclude children of foreigners, everyone must submit documents.
Ending birthright citizenship would also lead to some harmful consequences. Although work visas and the like are meant to be nominally temporary, in reality, many people have them (legally) for decades, forming families during that time. In particular, because of the federal cap on the number of green cards available to citizens of any country, people from India and China find it nearly impossible to convert to permanent residency. Their children can now be excluded from citizenship as well. In fact, it is not clear what legal status these children will have. In fact, some legal immigrants give birth to illegal “immigrants.”
The impact of ending birthright citizenship, combined with America’s current immigration law, will create a growing class of second-class residents – non-immigrants who can never become citizens. Fortunately, Trump may lack the power to make this happen. ■
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