Birthright Citizenship Is Not A Legal Assumption; It’s The Law

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Birthright Citizenship Is Not A Legal Assumption; It’s The Law By Kristie De Pena

Last week on Fox News, Tucker Carlson said, “It has long been assumed that anyone born here is automatically a citizen, and that the Constitution requires that. But in fact, that might not be the case.” Carlson was referring to a recent Washington Post piece written by a former Trump administration official, Michael Anton, who argued that President Trump could issue an executive order proclaiming that the children of illegal immigrants are not to be treated as citizens. Carlson closed his lead-in with the question, “And why wouldn’t he do that?” The answer is that the President — legally — cannot.

A majority of people in the United States and in the world do not earn their citizenship. There are two principal forms of citizenship transmission — jus sanguinis, a Latin term meaning “right of blood” (citizenship by descent) and jus soli, Latin for “right of the soil” (citizenship by territorial birth) — that ultimately confer citizenship based “on the accident of birth.”

Specific to the United States is the Citizenship Clause of the Fourteenth Amendment (ratified on July 28, 1868), which guarantees the universal right of birthright citizenship for persons born within the geographical boundary of the United States:

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.

In ratifying the amendment, Congress overruled the Supreme Court’s Dred Scott v. Sandford (1857) decision that denied birthright citizenship to the descendants of slaves. In 1957, Congress codifiedthe conferral of citizenship to “a person born in the United States, and subject to the jurisdiction thereof.” The Citizenship Clause was further enshrined in the Saenz v. Roe (1999) case, in which the Supreme Court held that new citizens must be treated the same as long-time citizens of a state and enjoy the same privileges and immunities, regardless of when they arrived in one state.

But it is the United States v. Wong Kim Ark case, decided by the Supreme Court in 1898, that offers the most food for thought about how inclusive or exclusive the Fourteenth Amendment was meant to be. In his piece, Anton hastily dismisses the long-established interpretation of the case and asserts that the Court ruled only that the children of legal residents are citizens, but not the children of illegal residents. The evidence for that claim is tenuous based on the facts of the case.

Wong Kim Ark was born in 1873 in San Francisco to a mother and father of Chinese descent who lived in California for a number of years before departing back to China in 1890. Aside from two short trips to China (the exact length of time is unknown, but under a year each time), Wong Kim Ark lived and worked in San Francisco. He traveled to China as a U.S. citizen.

Upon returning from his second trip to China, Wong Kim Ark was denied entry into the United States. The government conceded that if he was determined to be a citizen, they could not exclude him pursuant to the then-in-full-force Chinese Exclusion Acts.

The facts of the case never state that Wong Kim Ark’s parents had a visa that allowed them to come and visit the United States, only that they were domiciled and worked in San Francisco, and were not employed in any diplomatic or official capacity by the Emperor of China. The question posed to the Court was whether a child, Wong Kim Ark, born to them in the United States was a citizen under the Fourteenth Amendment.

Citizenship — specifically “citizen of the United States” and “natural-born citizen of the United States” — is undefined in U.S. law, so the Court looked to the English common law, finding that three centuries of law made clear that citizenship was conferred via jus soli:

[a]liens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English sovereign; and therefore, every child born in England of alien parents was a naturalborn subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of any alien enemy in hostile occupation of the place where the child was born.

That rule, the Court further expounded, was in full force in the English colonies when the Declaration of Independence was passed, and continued to prevail under the original Constitution. In support of its conclusion, the Court mustered evidence of this interpretation being used throughout the judicial, executive, and legislative branches of government . Ultimately, Wong Kim Ark was found to be a U.S. citizen by virtue of his birth in the United States.

Anton asserts that the rationale for birthright citizenship turns on a misreading of the Fourteenth Amendment. He links to a blog in his piece that cites the congressional record of debate in 1866. Based on one statement, he argues, the phrase “subject to the jurisdiction of” should be interpreted as not owing allegiance to anyone else, which the framers of the Fourteenth Amendment added “to distinguish between people to whom the United States owes citizenship and those to whom it does not.” That, Anton concludes, “definitely qualified” slaves for citizenship, but clearly not the children of illegal immigrants. (Note: There is some argument over the placement of an “or” which was inserted by Anton and arguably changes, rather than clarifies, the meaning of another statement he cites in support of his argument).

The Supreme Court, congressional, and common law understanding and support of birthright citizenship aside, there can still be a discussion about whether it is good policy, even if it actually concerns a relatively small population of people. The Pew Hispanic Center estimates that about 7 percent of the 4 million births in the United States are children born to unauthorized immigrant parents (2014). That percentage has varied up or down by less than 2 points since 1996. Between 1980 and 1986, the proportion of births to unauthorized parents was 1 percent or less.

For many years now, those associated with right-wing populism in particular have asserted that children who are born to illegal immigrants should not receive citizenship via birth. The main criticism of the policy is that it attracts “birth tourism” by foreigners who want their children (“anchor babies”) to be U.S. citizens.

Flattery aside, the inauspicious reason some populists do not want the children of illegal immigrants to become citizens is because they are largely from a demographic that often does not vote for the Republican Party (despite often holding traditionally conservative religious and family values). Nonetheless, both Democrats and Republicans have introduced legislation aimed at narrowing the birthright citizenship clause.

Proponents of change often cite the number of European countries that don’t provide birthright citizenship, although it is a bit misleading. Only two countries, India and Malta, have abolished birthright citizenship, whereas the vast majority of countries restrict it in some way.

Generally, in France, Germany, Spain, Portugal, and Ireland, at least one parent must have citizenship or legal status for birthright citizenship. France allows for case-by-case review of children born to foreign parents, and weighs a number of factors like age and length of residence to decide whether a child ought to be a citizen. Children born in Greece to foreign parents acquire citizenship based on their attendance in school and the length of their parents’ residence in Greece. Unrestricted jus soliexists all over the world — in 33 countries — including Argentina, Canada, Brazil, Mexico, Pakistan, and Uruguay.

There may be disagreement about the policy, but about whether the president can unilaterally change the law, there is none. Laws strengthened by the jurisprudence of the courts and cemented in our United States Code are not legally vulnerable to the whims of the executive. Congress can amend the Constitution, or (arguably) the statute alone, the Supreme Court can re-interpret the Fourteenth Amendment in a different light, but President Trump cannot — legally — use an executive order to undo more than a hundred years of legal precedent.

And, for what it’s worth, Republicans should not be encouraging an executive action of that breadth.


About The Author

Angelo A. Paparelli Kristie De Penais the director of immigration and senior counsel with the Niskanen Center. She focuses on immigration and national security law and policy and earned her J.D. from the University of Iowa College of Law, and a Master of Laws in national security and foreign policy from George Washington University School of Law. She consulted with the Department of State on immigration, healthcare, and security issues prior to her work at the Niskanen Center. Her work has recently been cited in the Washington Examiner, RealClearPolicy, National Review, The Hill, The American Conservative, Huffington Post, Newsweek, and Reason.

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