EMILY GILL
Shortly after his inauguration, President Trump issued an executive order that the children of undocumented immigrants born on U.S. soil should not automatically become citizens, as would otherwise be the case under U.S. law. Thankfully, a U.S. district court judge has indefinitely blocked this order.
According to the 14th Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The few exceptions include children born to accredited foreign diplomats and those born to enemy soldiers of an invading army.
Universal birthright citizenship cannot be terminated by executive order. It would take either a constitutional amendment or a legal decision, most likely by the Supreme Court.
Birthright citizenship has been widely accepted and has also been considered a fundamental American value, that of the equality at birth of all people born in the U.S. In the controlling case, United States v. Wong Kim Ark (1898), the Supreme Court ruled that Mr. Wong, born in the U.S., was a citizen despite the fact that his Chinese parents, although domiciled in the U.S. as laborers, had taken him back to China as a child, and despite the later Chinese Exclusion Act of 1882. Mr. Wong was returning to the U.S. as an adult when he was detained.
As an interpretation of the 14th Amendment, Wong Kim Ark carries repercussions beyond the citizenship of people thought to be foreigners. The 14th Amendment overturned the 1857 Dred Scott decision, which stated that no one of African descent or their descendants, free or not, could aspire to U.S. citizenship. And if Mr. Wong had lost his case, citizenship would also have been denied to children born in the U.S. to white European immigrants.
Opponents of universal birthright citizenship focus on those who may not be subject to the jurisdiction of the U.S. In Mr. Wong’s case, his parents were not citizens and were therefore deemed to be subject to the jurisdiction of the emperor of China. In current circumstances, the jurisdiction argument would apply to people who in theory are not required to obey U.S. law. One could argue, however, that because all persons in the country must under threat of prosecution obey traffic laws, laws against theft, and so forth, therefore even foreigners are subject to our jurisdiction, at least temporarily, unless they possess some form of diplomatic immunity.
As if the threat to birthright citizenship were not enough, President Trump has also revived an idea first broached during his first term: the revocation of an immigrant’s citizenship (through naturalization) if it was “unlawfully procured.” Although past administrations reviewed some naturalized citizens with potential ties to terrorist groups, the first Trump administration focused on minor discrepancies in files, such as typographical errors. This effort reminds one of the red-baiting 1950’s, during which the U.S. government used its power to revoke the citizenship of immigrants it deemed political enemies. Given Trump’s stated intentions to suppress criticism and to avenge himself upon those whom he perceives to have wronged him in the past, denaturalization may be a potential threat to many. Naturalization should be regarded as final, rather than subject to later scrutiny with picayune justifications.
Finally, practical difficulties attend any effort to end universal birthright citizenship. First, any mother giving birth might be required to prove her own citizenship status with a birth certificate, passport, or proof of permanent residency or other legal status. If she cannot do so, the father might — but would he also have to prove that he is really the father? Second, most undocumented immigrants have been hard-working residents of the U.S. for years. Their U.S.-born children would not automatically become citizens of their parents’ countries of origin. They would become stateless persons, with no rights because no government would be obligated to protect them. As the political philosopher Hannah Arendt wrote, citizenship is “the right to have rights.”
Amidst the many other travesties perpetrated by the present Trump administration, its stance on citizenship, both birthright and naturalized, is one of the most fundamental and appalling.