Why birthright citizenship may not apply to children of undocumented immigrants

Former President Trump has made a new policy pledge: If he wins the 2024 presidential election, as part of his plan to secure the border, he will “sign an executive order making clear to federal agencies that under the correct interpretation of the law going forward the future children of illegal aliens will not receive automatic U.S. citizenship.”

According to Trump, if he doesn’t do this, “They’ll be eligible for welfare, taxpayer funded health care, the right to vote, chain migration and countless other government benefits, many of which will also profit the illegal alien parents.” 

Birthright citizenship for children of undocumented immigrants “is a reward for breaking the laws of the United States and is obviously a magnet helping draw the flood of illegals across our borders.” He also would ban “birth tourism.”

Would such an executive order violate the Constitution?

The Framers of the Constitution did not define “citizenship.” In 1857, the Supreme Court held in Dred Scott v. Sandford that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

The Fourteenth Amendment repudiated this decision and established a constitutional basis for birthright citizenship that would include African Americans.

There are two ways for a person to acquire birthright citizenship. Under the doctrine of “jus soli” (right of soil), a person acquires citizenship in a country by being born in that country or its territorial possessions. Under the doctrine of “jus sanguinis” (right of blood), a person acquires the citizenship of his parents at birth.

Only 33 countries have unrestricted jus soli birthright citizenship. Other countries recognize jus soli birthright citizenship in special circumstances. But in the vast majority of countries, citizenship at birth is determined by the citizenship of the parents.

Nearly every country that offers birthright citizenship is located in North or South America. According to sociologist John Skrentny, the European powers that colonized the Americas established lenient naturalization laws here to grow their colonies and overpower native populations.

The Citizenship Clause in the Fourteenth Amendment states that “[a]ll 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.”

In the 1898 case United States v. Wong Kim Ark, the court held that “subject to the jurisdiction” permits only two narrow exceptions to citizenship at birth: members of Indian tribes and children born to parents in the diplomatic service of a foreign country.

Wong Kim Ark has been used to support the prevailing view that the children of undocumented migrants have a constitutional right to birthright citizenship. But the case was decided 125 years ago, when federal law didn’t limit immigration, so there were no undocumented immigrant parents when that decision was rendered — or when the Fourteenth Amendment was passed, for that matter.

Would the court have reached the same conclusion if had been faced with the issue of whether the children of immigrants who are in the United States unlawfully have a constitutional right to birthright citizenship?

Trump’s other concern is birth tourism, which refers to when a pregnant woman enters the United States on a nonimmigrant visitor’s visa to give birth here to make her child a U.S. citizen. This is not a legitimate use of a visitor’s visa, and a pregnant woman will not be given a visitor’s visa if she is honest about her reason for coming to the U.S. An entire birth tourism industry has evolved to assist such women to come to the U.S.

The United States has one of the highest birth tourism rates. The Center for Immigration Studies estimates that 33,000 pregnant women a year come here from other countries to give birth to their children in the United States.

In addition to being a misuse of visitor visas, birth tourism is unfair to immigrants who must endure a long and painstaking process to become naturalized American citizens. This includes becoming a lawful permanent resident and, with some exceptions, living here for five years before they are eligible. They then must complete a 10-step naturalization process, satisfy numerous requirements and pay steep application fees.

I think it is apparent that the reliance on Wong Kim Ark is misplaced. It was decided 125 years ago when there were no immigrant parents who were living unlawfully in the United States.

If Trump wins the 2024 election and issues the executive order he has pledged to issue, opponents will challenge it in court and the litigation almost certainly will reach the Supreme Court, which will decide it on the basis of current circumstances with the knowledge of how birthright citizenship has been exploited.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him a: https://nolanhillop-eds.blogspot.com.