Get the Facts About Birthright Citizenship
In November 2018, the US held its mid-term elections. A “hot button” issue at the moment is immigration. President Trump made headlines throughout October and early November for his escalating and harsh treatment of migrants approaching the United States (US) southern border. After that, the president went as far as altering US asylum procedures in order to deny migrants the ability to declare asylum.
During the campaign season, the president made another announcement. He revealed that he would utilize an executive order to end birthright citizenship. A constitutional right, birthright citizenship is the means by which the majority of the US population establishes nationality. In practice, it is what allows natural-born citizens to prove their status with a simple birth certificate.
Considering the grave nature of the president’s threat, it seems prudent to explore the issue further. First, what does the Constitution say about birthright citizenship? Second, there any legal precedent for it? And, can current opponents eliminate it? How?
The lawyers at Davis & Associates continue to monitor the development of immigration policy, procedures, and litigation. If you have questions, their expert attorneys are happy to help. You can schedule a free initial consultation to discuss your concerns.
What is Birthright Citizenship?
In 1868 jus soli, or “place-of-birth” citizenship, was established in the United States after the Civil War. It is included in the Fourteenth Amendment to the Constitution of the United States. Within Section 1, it 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.” This citizenship by birthright is guaranteed no matter the social status or documentation of a child’s parents.
Birthright citizenship is a standard in over 30 countries across the globe, including Canada and Mexico. For nations, it is a simple way to establish citizenship for the majority of their populace. Because of birthright citizenship, it’s possible to limit government oversight and costly processing requirements required for other methods of citizenship.
United States v. Wong Kim Ark
In the United States, the Supreme Court upheld the jus soliprovision in 1898. In United States v. Wong Kim Ark, the Court considered the case of a US-born child of Chinese immigrants. Born in San Francisco, Wong Kim Ark had resided in America for the majority of his life. When his parents, both immigrants and Chinese citizens, chose to return to China, Wong Kim Ark visited them on two occasions. After his second trip to China, Wong Kim Ark was refused re-entry into the US. Authorities stated he was a Chinese citizen due to his parentage.
The Supreme Court ruled in favor of Wong Kim Ark. In the issued majority opinion, the Court stated that the Fourteenth Amendment very clearly establish Wong Kim Ark’s citizenship, and that no state could individually deny that right. The court also recognized that if Wong Kim Ark was denied citizenship based on his Chinese parentage, it would legally mean that citizenship was being incorrectly provided to the children of European immigrants. You can read the entirety of the case, as well as the majority opinion and dissent, here.
Why do some people oppose birthright citizenship?
Recently, Donald Trump challenged the legitimacy of birthright citizenship. Via tweet, the president wrote that he intended to eliminate the right by issuing an executive order. This announcement drew negative attention immediately from both the news media and fellow leaders in Washington. On both sides of the aisle, politicians agreed that Trump’s plan was egregious and, in actuality, not possible.
But, why is birthright citizenship being challenged? It’s a constitutional right and provides a simple structural method for establishing citizenship. Further, there’s little proof that the right is being fraudulently misused. Below are two significant reasons that immigration opponents dislike birthright citizenship.
Citizenship for Children of Undocumented Immigrants
Firstly, birthright citizenship allows any US-born children of undocumented immigrants to receive full US citizenship. Opponents of immigration argue that this allows such children to act as “anchor babies.” According to this theory, undocumented immigrants intentionally have children for this purpose – US citizens can sponsor green cards for immediate family members. While this certainly occurs, the idea of “anchor babies” is inherently flawed. Undocumented immigrants rarely come to the US to have children – they are searching for work, for safety, for a better life.
Secondly, unlike undocumented immigrants, some foreign nationals are participating in “birth tourism.” The term, coined by the media, refers to a growing industry of institutions that cater to wealthy foreigners who wish to have their children in the US. It may surprise you that many of those participating in “birth tourism” come legally. The Huffington Post interviewed a Chinese mother who arrived in the US to have her baby. In the article, she explains the legal process she took as she arrived at US Customs. Surprisingly, the Post stated that an estimated 60,000 Chinese mothers had participated in birth tourism in 2014.
Can birthright citizenship be repealed?
Fortunately, the path to eliminating birthright citizenship includes many roadblocks. This is intentional: the founders of the US did not want it to be easy to amend the Constitution. In this section, we’ll explore the specific events that would need to occur in order to revoke birthright citizenship. Hopefully, this will provide clarity and comfort regarding the possibility of repeal.
First, it is important to note that Donald Trump cannot eliminate birthright citizenship with an executive order. Such an action would violate the delicate balance of power between the executive, legislative, and judicial branches of our government. According to NPR, Speaker Paul Ryan stated simply that the act was “unconstitutional.” He added that the Fourteenth Amendment is “pretty clear,” continuing that repeal would involve a “very, very lengthy constitutional process.”
Requirements to Amend the Constitution
In order to eliminate birthright citizenship, the US leaders need to amend the Constitution. This power lies with Congress, not the president. It would also be very difficult to achieve without bipartisan cooperation. If Congress were to attempt to amend the Constitution, the motion would require a two-thirds majority vote in both the House of Representatives and the Senate. If passed in Congress, an additional challenge remains – three-fourths of states would have to agree to the amendment. Considering our “split” Congress and the pro-immigration status of many states, it is highly unlikely that anyone will eliminate birthright citizenship.
Considering the Consequences
Opponents of birthright citizenship do not often detail the likely consequences should the US repeal this constitutional right. First, birthright citizenship is an easy way for governments to identify its citizens. Without it, the American Immigration Council (AIC) points out that government oversight will be costly and time consuming. Lacking a simple process like birthright, derivative citizenship processes would burden American government and taxpayers. Additionally, human error will likely lead to long waits and stressful fights for Americans attempting to prove their citizenship.
Secondly, history has shown us the dangers of revoking birthright citizenship. Modern examples serve as warnings for American lawmakers. The Atlantic recently published an excellent article discussing the disastrous repeal of birthright citizenship in the Dominican Republic. In 2010, denial of citizenship rights to those of Haitian descent caused a humanitarian crisis. According to The Atlantic, those targeted “lived in a state of institutionalized terror enforced by the police, the military, and vigilante mobs.” As this proves, denying nationality to specific sets of people can be dangerous.
Finally, a report by the Migrant Policy Institute discusses the unintended consequences of repealing birthright citizenship. As we know, undocumented immigrants are a major concern for American lawmakers. Although some political leaders believe that removing birthright citizenship will help the problem, MPI’s data show it will worsen it. By the MPI’s estimates, denying citizenship to children with one “unauthorized” parent would “balloon” the undocumented population from 11 million to nearly 24 million by 2050. Because of these reasons and more, it’s unlikely the US would repeal birthright citizenship.
While the current challenges to birthright citizenship upset many across the US, it is unlikely that US politicians will eliminate the right any time soon. This is due to the difficult steps required to amend the Constitution. Additionally, the obvious consequences of elimination of birthright citizenship are severe enough that the idea is unlikely to receive serious consideration. Thus, it is possible, but not probable, that an amendment to the Constitution could eliminate citizenship rights via birth. For all families across America, this is excellent news.
In conclusion, we recognize that current state of US politics is stressful for immigrants across the country. It can be frustrating and disheartening to follow the news and listen to the rhetoric of some leaders. If you’re worried about your right to work, live, and thrive in America, an expert immigration attorney can help. The skilled and compassionate attorneys at Davis & Associates will address your immigration concerns, represent your interests, and protect your rights. Contact Davis & Associates today to schedule your free initial consultation.