Long before Trump became president, conservative commentators began pressing for an end to what’s widely called “birthright citizenship.”
That means the right, under the Fourteenth Amendment to the U.S. Constitution, of: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, [to be] citizens of the United States and of the State wherein they reside.”
For well over a century, this amendment has been interpreted by courts and legal scholars to mean that anyone born on American soil automatically becomes a natural-born citizen. Its original purpose (when passed in 1868) had nothing to do with undocumented immigrants and everything to do with making sure the children of slaves became U.S. citizens despite a harsh Supreme Court holding to the contrary. (See Dred Scott v. Sandford).
But now Trump is making noises about undoing the amendment via Executive Order.
Let’s assume for the sake of argument that conservative commentators have a point in arguing that the constitutional language about “subject to the jurisdiction thereof” means that children of undocumented immigrants—or perhaps even of legal immigrants, Trump’s intentions aren’t clear on this point—don’t fall within this constitutional protection currently offered.
How would ending birthright citizenship play out in practical terms? It doesn’t take a crystal ball to predict some of the results:
- Uncertainty and years of litigation. Presidents cannot ordinarily override the Constitution and legal precedent with a sweep of the pen. If Trump follows through on his stated plan to do away with birthright citizenship by executive order, we can expect years of followup court cases.
- Bureaucratic mayhem. The U.S. State Department or Social Security Administration will have to dive deep into investigating and examining parents’ immigration statuses to decide whether or not a child’s parents had valid immigration status (and thus the child deserves a passport or Social Security card). That’s a tougher call than one might realize. What if, for example, the child’s mother overstayed a visa by one day, gave birth while having no immigration status, then later became a legal U.S. resident after marrying a U.S. citizen, and years later, became a citizen herself? The system will get bogged down in delays, injustices, and more litigation.
- Children will live in the U.S. with no right to work or become productive members of society. If they’re born here, speak the language, and grow up here without ever having known another country, it’s a safe bet many of them will stay here. This is the issue that Congress tried to address with the DREAM Act, which it dithered on for so long that President Obama created DACA. In 2017, Obama said in response to Trump’s DACA cancellation, “To target these young people is wrong—because they have done nothing wrong. It is self-defeating—because they want to start new businesses, staff our labs, serve in our military, and otherwise contribute to the country we love. And it is cruel. What if our kid’s science teacher, or our friendly neighbor turns out to be a Dreamer? Where are we supposed to send her? To a country she doesn’t know or remember, with a language she may not even speak?”
- Stateless children. Not every country grants citizenship to the children of their own citizens who are born in other countries. Even the U.S. does not do so in every instance. So we will end up with residents who have no citizenship here and none to claim elsewhere. (See, for example, “Having children abroad? Your country may not want them.”)
- Deterrence of undocumented immigrants. This is certainly the hope of some of those supporting Trump’s plan to end birthright citizenship. It is possible that some people will be deterred from coming to the U.S., if their only intention in coming was to obtain citizenship for their children. But let’s not forget that many undocumented people were fleeing such difficult or dangerous situations in their home country that the citizenship of their unborn, possibly unconceived children was likely low on their list of considerations.
- Deterrence of legal immigrants. It is equally possible that immigrants arriving legally on visas or with lawful permanent residents—whom the U.S. welcomes specifically because they are, for example, world-famous scientists, authors, or artists, or they fill a gap in the U.S. labor force—will also be deterred. Seeing that their future children might end up stateless, they may think twice about settling in the United States, and thus take their talents elsewhere.
No doubt other potential consequences will come to light as this issue is studied and considered further.