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Birthright Citizenship: A Primer

The Brief

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.

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.

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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.

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.

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.

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