In his zeal to effect change in America, President Trump is signing a lot of proclamations in the form of executive orders, especially on camera in front of a host of witnesses, as if to demonstrate that he is a man of action. In fact, he is signing executive orders at the second-fastest pace of any modern Republican president — trailing only Dwight Eisenhower. His most recent effort is an announcement that he will sign an executive order to remove the right to citizenship for babies born on U.S. soil to foreign parents who are non-citizens or unauthorized immigrants . This move would be in line with Trump’s hardline immigration campaign, this time targeting “anchor babies” and “chain migration.”
There is little doubt the order will end up in the courts. That’s because the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution provides 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.”
The amendment was originally intended to grant citizenship to freed slaves following the Civil War, overriding the Dred Scott v. Sandford decision by the Supreme Court that forbid African-Americans from ever gaining citizenship and the Naturalization Act of 1790 that only conferred citizenship on free white persons “of good character.” In practice, the Fourteenth Amendment has become a bedrock of U.S. immigration law that has ever since allowed anybody born in the U.S. to become citizens.
There are few rights more fundamental than the right of citizenship. And there few laws more fundamental than the constitution. The Amendment ensures that citizenship in the United States is universal. Citizens have rights that neither the federal government nor any state can take away without due process and the equal protection of the law. That is true, in the language of the amendment, even to undocumented immigrants.
The leading case on citizenship by birth was the ruling of the Supreme Court of the United States in United States v. Wong Kim Ark decided in 1898, that the Fourteenth Amendment guarantees citizenship for nearly all individuals born in the United States, except for diplomats. Those who argue that the president has the power to bar birthright, focus on the phrase “subject to the jurisdiction thereof” contending that it should be interpreted not only to exclude diplomats who are by their function not subject to U.S. legal jursidiction, but to illegal immigrants as well. But most constitutional experts and immigration attorneys would argue that’s a stretch.
Trump’s proposal is not really that new. Republicans have long been bothered by birthright citizenship. In 1996, for example, the party platform called for an end to birthright citizenship, but the party presidential nominee, Senator Bob Dole, renounced the idea. More recently, concern about so-called “anchor babies” has arisen in part because of a new business model involving making money from bringing foreign mothers to the United States to give birth to their children. In fact, roughly one out of every 12 newborns in the United States can be classified as a so-called ‘anchor baby.’ Pew research shows that some 295,000 children were born to undocumented immigrants in 2013, while the number of pregnant ‘birth tourists’ who come here legally to take advantage of the fact that all persons born in the United States are citizens of the United States was estimated at 36,000 a year back then.
Although the number of illegal aliens having children in the United States has been rising over the years, the immigration benefits of having a child born in the United States are limited. Citizen children cannot sponsor parents for entry into the country until they are 21 years of age nor block their deportation by being related to the unlawfully present parent. What is more, there is a ten year bar to re-entry if the parent has ever been in the country illegally for more than a year, which makes the notion of birthright impractical as a means of gaining immediate legal status in the USA. At best the move is a long term strategy employed by foreigners who foresee a benefit for their children in their later years, when they are of college age and beyond.
U.S. President Donald Trump indicated he would sign an executive order barring babies born to foreign mothers without immigration status from U.S. citizenship by birth. Photographer: Al Drago/Bloomberg
In the interview Trump was quoted as saying “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits.” Trump added, “It’s ridiculous. It’s ridiculous. And it has to end.” There are, however, actually some thirty countries that allow for citizenship by birth. What is significant about the issue is its use as a political tool to mobilize supporters and the president’s willingness to employ it despite what many legal authorities would regard as shakey legal grounds for using it.