EMILY GILL
On April 1, the U.S. Supreme Court heard arguments in Trump v. Barbara, President Trump’s attempt to deny automatic birthright citizenship to all persons born in the United States. This right stems from the Fourteenth Amendment, which became part of the Constitution in 1868 and was one of the post-Civil War amendments. Although it was needed to confer citizenship on former slaves, in congressional debates a Michigan senator said that it simply declared what was in the eyes of many the long-accepted law of the land. The amendment has also functioned to confer birthright citizenship upon the descendants of immigrants to the U.S.
The government’s case against automatic birthright citizenship stems from a key 1898 Supreme Court precedent, United States v. Wong Kim Ark, in which the court ruled that Wong Kim Ark, a man of Chinese ancestry born to noncitizen parents in San Francisco, was a citizen by virtue of his birth in the U.S. His parents, however, were “domiciled” in the U.S., which would be the equivalent of permanent residency. This makes Wong different from today’s children of undocumented immigrants or temporary residents. Under current law, the children of foreign diplomats and of Native Americans belonging to sovereign nations are excluded.
The Trump administration’s narrow interpretation of Wong Kim Ark militates against the inclusiveness that is supposed to be a hallmark of our values. Just as important, however, is the chaos that would be unleashed by a decision supporting the administration. First is the problem of verifying the status of births. Birth records in the U.S. are highly decentralized, typically registered by town or county. Parents sometimes delay in completing paperwork, and specific circumstances, such as births from surrogacy, render paperwork complex. A child born to a noncitizen mother and an absent citizen father would complicate registrations. Home births without a medical professional present may also delay matters. The establishment of a new bureaucracy for centralizing birth registrations would cost billions and take years.
Second, according to one study, the elimination of universal birthright citizenship could result in 6.4 million U.S.-born children without legal status by 2050. Birthright citizenship would be denied not only to the children of undocumented immigrants, but also to those born to foreign nationals here lawfully on temporary visas. Because Latinos constitute the largest undocumented group here, these babies would account for 8 of every 10 children born in the U.S. who would not be American citizens, or 17 out of every 1000 undocumented Latinos. For the much smaller group of Asians, however, the children of 41 out of every 1000 Asian immigrants would be born without citizenship, the largest relative change among all groups. Many children would be born to parents here on student or work visas from countries such as China or India.
This report concludes that the end of birthright citizenship would create an underclass of U.S. residents increasing across many generations. These stateless persons would be unable to access the rights and benefits that should not only follow from allegiance to the country, but that also play a role in the development of loyalty, a sense of community, and patriotism. It is ironic that such an outcome would confer the worst consequences on members of the same group, Asians, of which Wong Kim Ark himself was a member.
Finally, the problem of a potential underclass also resonates with a proposal by Stephen Miller, a major Homeland Security advisor to President Trump who is responsible for many of the recent deportations. In March he suggested that Texas pass a bill limiting public education only to children who are citizens or “lawfully present in the U.S.” Texas has been down this road before. In a Texas case in 1982 that would have withheld funding for the education of undocumented alien children, the Supreme Court in Plyler v. Doe ruled that states must pay for the elementary education of all students present, regardless of immigration status. The court noted that many of these children would remain here even if uneducated. At worst they would add to the burden of unemployment, welfare, and crime; at best they would suffer “a lifetime of hardship” for which they themselves were not accountable.
A refusal of birthright citizenship to children of the undocumented or of those here on temporary visas, along with a refusal to educate these children, would vastly increase the potential underclass and would divide the U.S. into two kinds of residents, those who are full members of society, whether as citizens or permanent residents, and those on the fringes of society, benefitting only by the grace of the “real” Americans. Is this really what we want?