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Birthright Citizenship: A Primer

By Cristobal Ramón

Monday, November 5, 2018

President Trump told Axios recently that he was considering issuing an executive order that would eliminate birthright citizenship for the children of non-citizens, including undocumented immigrants.  This move drew criticism from constitutional scholars and lawmakers on both sides of the aisle, all of whom claimed President Trump’s measure would be unconstitutional. Although the debate over birthright citizenship is not new, the latest efforts to eliminate this right have renewed questions about birthright citizenship, its legal foundations, and the prospect of eliminating it for the children of non-citizens.

What is birthright citizenship?

In the United States, the term birthright citizenship refers to the right of children of all non-citizens who are born in the country to automatically receive full citizenship status regardless of the citizenship status of their parents. Birthright citizenship stems from the English common law concept of jus soli, (“right of soil”), where an individual’s territorial location at birth—not their nationality—determines their nationality and citizenship status. Birthright citizenship does not apply to all children born in the United States, however. The Supreme Court has stated that this right does not extend to the children of foreign diplomats, ministers, the staff of foreign embassies, or members of recognized Native American tribes.

What is the legal source of birthright citizenship?

The 14th Amendment to the U.S. Constitution, adopted in 1868, and later U.S. Supreme Court cases that have interpreted the amendment form the legal foundation for birthright citizenship. The first clause of Section 1 of the 14th Amendment, known as the citizenship clause, states that, “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 clause has subsequently served as the language that has shaped the discussion around birthright citizenship since the late 1800s.

The landmark 1898 U.S. Supreme Court Case United States v. Wong Kim Ark established the legal foundations for birthright citizenship under this clause. In that case, immigration authorities prevented Wong Kim Ark, the U.S.-born son of Chinese immigrants, from entering the United States under the Chinese Exclusion Act after traveling to China. The government argued that Wong did not have the right to enter the United States because the 14th amendment only granted citizenship to citizens subject to the political laws of the country. The Supreme Court disagreed, stating that the amendment applies to the children of all non-citizens since the jurisdiction of the United States covers every individual “domiciled” in the nation’s territories.

Why has birthright citizenship remained a contentious topic of debate?

Birthright citizenship has remained a contentious political issue due to arguments about its impact on generating undocumented immigration to the United States. Critics claim that Congress should eliminate this right because undocumented immigrants may come to the United States to take advantage of the nation’s public benefits system through the birth of their U.S. citizen children, or to have their children sponsor them for permanent residence at some point in the future. Advocates reject this argument, noting that birthright citizenship serves as one of the most important avenues for promoting the assimilation of immigrants into the United States. Americans largely remain wary of changing the legal foundations of birthright citizenship: a 2015 Pew survey found that only 37 percent of respondents wanted to change the U.S. Constitution to prohibit citizenship for the children of non-legal residents.

The meaning of the phrase “subject to the jurisdiction thereof” in the citizenship clause has also generated significant debate among legal scholars. A Congressional Research Service review of the debate finds that most scholars believe the phrase encompasses all individuals within a sovereign nation’s territorial boundaries since the state can enforce its laws within these territories. In contrast, opponents of birthright citizenship claim that the phrase excludes the children of non-citizens, especially undocumented immigrants, since it limits the concept of “jurisdiction” to individuals that have established political links with the U.S. government.

Would it be legal to eliminate birthright citizenship for the children of non-citizens?  

It depends on the actions taken by Congress or the Executive Branch. Broadly, legal scholars acknowledge that the citizenship clause makes it permissible for children of all non-citizens in the United States to receive citizenship. As a Congressional Research Service analysis notes, the clause sets “a floor above which Congress may but is not required to extend U.S. citizenship by birth to additional groups, as it has done for Native Americans and for children of U.S. citizens born abroad under certain circumstances.” Under this argument, efforts that eliminate the clause’s capacity to expand the pool of individuals eligible for this right without adjusting the language in the U.S. Constitution might pass constitutional muster. However, whether this could be done without congressional action is questionable. The Constitution vests in Congress the power to enact “a uniform rule of Naturalization” and this power has been affirmed by courts to support Congressional authority over immigration generally. However, trying to adjust this “floor,” such as by reinterpreting the 14th Amendment language, would certainly result in a court challenge both as to the reinterpretation and the authority to do so without changing the Constitution

However, critics of birthright citizenship argue that removing birthright citizenship for the children of undocumented immigrants would be legal since neither Wong nor the citizenship clause explicitly establish that the children of undocumented immigrants have the right to birthright citizenship. In this reading, the Supreme Court in Wong did not consider the possibility that the children of undocumented immigrants would gain access to this right, opening avenues to restrict this right for this population without altering the Constitution. As noted above, opponents of this view argue that the decision encompasses undocumented immigrants since these individuals are subject to all U.S. laws within U.S. territory, aligning with the Court’s decision in Wong.

Although there have been legal debates about whether Congress could restrict birthright citizenship, there has been less review of the possibility of such action being taken by the executive branch. The executive branch has the power to interpret laws passed by Congress in its efforts to implement them—such as via its regulatory authority—but such interpretation must be within the bounds of the law enacted. Given that birthright citizenship as stated in the 14th Amendment is also enacted into law in the Immigration and Nationality Act by Congress, it is unclear how the executive branch could amend it by regulation. Indeed, many in Congress have said that such change, if it were to be undertaken, would have to be made by Congress.

Regardless, given the debate over this issue, any effort, legislative or executive, to change the long-standing interpretation would likely be subject to immediate court challenge. President Trump himself has acknowledged that the Supreme Court would ultimately decide the issue.

Has this been discussed before?

Some Republican members of Congress have proposed or expressed support for legislative measures that would strip the children of undocumented immigrants of birthright citizenship in recent years. In 2015, for instance, Rep. Steve King (R-IA) and then-Sen. David Vitter (R-LA) introduced companion bills titled “Birthright Citizenship Act of 2015,” which would have introduced provisions in the Immigration and Nationality Act that would eliminate this right for children of undocumented immigrants, individuals with non-immigrant visas, or refugees or asylees. In 2010, Sens. Mitch McConnell (R-KY) and Lindsey Graham (R-SC) expressed support for reviewing whether the children of undocumented immigrants should receive birthright citizenship. Some Democrats, such as former Senator Harry Reid (D-NV), have previously expressed support for changing birthright citizenship, but have since changed position to oppose it.

KEYWORDS: 14TH AMENDMENT, CITIZENSHIP, CONSTITUTION, PRESIDENT DONALD TRUMP