A Case Against Termination of Birthright Citizenship in the U.S.
The United States is currently facing a rising wave of anti-immigrant sentiment under the growing Conservative surge within the federal and state systems, especially with midterm elections quickly approaching. This article focuses on addressing the legal feasibility of terminating birthright citizenship as President Trump has stated he would accomplish through an executive order.
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Framing the Issue
‘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 is an excerpt from the 14th Amendment of the United States’ Constitution, a critical turning point in the political landscape after the fall of the formally-institutionalized system of slavery and a popular topic of debate in the U.S. Its original purpose, or only purpose as opponents raise, was to provide former slaves and their descendants with citizenship and, by virtue of that citizenship, access to the civil, political, and social rights extended by the U.S. Constitution, but it has continued to guarantee citizenship for entire generations of children born on U.S. soil, including the children of undocumented immigrants which arrive to the U.S. through unauthorized means.
It is impossible to understate the importance of the 14th Amendment in shaping U.S. immigration policy; yet, President Trump has recently stated that he wants to do away with birthright citizenship for (primarily) U.S. born children of undocumented immigrants, a sentiment shared by other conservatives such as Senator Graham who plans on introducing a new bill to amend the US. Constitution. In an interview with Axios, Trump says, ‘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. It's ridiculous. It's ridiculous. And it has to end,’ which is actually an incorrect statement since the U.S. is part of a small club of over 30 different countries which grant birthright citizenship, but is a statement that has stoked anti-immigrant sentiments less than a week before midterm elections (in which the fate of Republican control of Congress hangs in the balance). Although actual details about how this change to the Constitution would play out have not been made publicly available by Trump or Senator Graham, leading many to speculate that this is only a publicity stunt to rally conservative voters, it is still worth examining the feasibility of passing this change.
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Constitutional Process and Legal Precedent
The good news is that Trump is bluffing when he states that ‘It's in the process. It'll happen ... with an executive order,’ as if claiming that he is essentially above the U.S. Constitution. The process to amend the Constitution is one with multiple checks and balances: to begin, a proposal must be introduced in Congress and receive the approval of two-thirds of all representatives (Senate and House); if it passes, three-fourths of all states must vote in favor of making the change; and, the Supreme Court will also have a say by reviewing the legality of such a proposal during this entire process. Of course, Trump is also still allowed to sign any executive order he desires since that is within his executive powers; however, federal courts and the U.S. Supreme Court would be able to challenge it, as seen in the example of D.A.P.A. during the Obama era. If the courts were to challenge an issued executive order or Congressional proposal, one can expect the courts to argue that any changes to birthright citizenship would go against the 14th Amendment, as well as argue the precedent case of United States v. Wong Kim Ark, in which the Supreme Court ruled that the U.S. could not deny citizenship to the U.S. born child of non-citizens from China. However, I would argue that the case of Plyler v Doe would be an ever more important case to present in upholding birthright citizenship. In this particular case, it was decided that undocumented children could not be denied a public education on the basis that ‘by denying these children a basic education we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation,’ as well as stating that ‘legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice’; in brief terms, it is against the interests of the Nation to punish children for the actions of their parents. This ruling could become a strong argument if expanded in understanding that the denial and retroactive termination of birthright citizenship would be against the interests of the United States as it would generate an expanded second-class population.
Final Thoughts
When considering the legal feasibility of Trump’s assertion, it is clear that he has no power to unilaterally terminate birthright citizenship since the U.S. Constitution possesses multiple checks and balances that would prevent absolute power. Any action in this direction would face many barriers, and there is already sufficient precedent to build a legal case against the termination of birthright citizenship. In short, the U.S. is currently facing a rising wave of anti-immigrant sentiment under the growing Conservative surge within the federal and state systems, especially with midterm elections quickly approaching, but, as a country, we cannot allow ourselves to lose sight of what has shaped our Nation to be a country of immigrants: the promise of life, liberty, and pursuit of happiness. To deny or retroactively strip citizenship because a child’s parents are undocumented is to act in contrary of what is truly beneficial to the Nation as a whole and would lead to the devastating expansion of a second-class population.
Nuno Pereira is a Jack Kent Cooke International Award Scholar from the U.S. reading for the MPhil in Comparative Social Policy (CSP). In the U.S, he received an associate's degree in Criminal Justice from Union County College, and a bachelor's degree in Forensic Psychology from John Jay College of Criminal Justice where he researched the effects of memory in the criminal justice system. His interest in CSP comes from his background as a community organizer developing community-driven social programs and state-wide political campaigns. He plans to research the unintended consequences of policy making on communities, particularly on immigrant populations, and he hopes to continue on to a DPhil.
The views expressed in this article are the author's own and do not necessarily reflect any editorial policy.