Of the many apple carts Donald Trump has tipped in the gathering whirlwind of planned initiatives for his second term, few have garnered the critical cacophony spurred by his promise to end birthright citizenship for children born in the United States to undocumented entrants. Contrary to widespread legacy media chatter, he might change the law to reverse current practice.
Longstanding US policy has granted citizenship to those born on US soil, even if their mother is in the country illegally. The president-elect has proclaimed he will issue an executive order requiring at least one parent be a US citizen or a lawful permanent resident in order for their US-born child to obtain citizenship. Pundits and the mainstream media have roundly dismissed Trump’s promises as unconstitutional or unlikely based on current legal interpretations, but both policy and law could support such a reversal.
Current US policy is premised on the 1898 Supreme Court decision of United States v. Wong Kim Ark, which held a US-born Chinese man with legal immigrants as parents was entitled to citizenship under the Fourteenth Amendment: “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.”
No court has addressed whether this application extends also to illegal immigrants. Congress has not legislated on the issue. Current US policy treats illegal immigrants as entitled to protection under Wong Kim Ark equally with legal immigrants: Trump has vowed to challenge this unaddressed jurisprudential gap.
Republican Sen. Jacob Howard of Michigan introduced the Fourteenth Amendment on May 30, 1866, clarifying:
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
As Charlie Kirk wrote in Human Events:
“The 14th Amendment guarantees citizenship to those born in the United States, ‘and subject to the jurisdiction thereof.’ It was written to overturn the Dred Scott decision, and ensure that freed slaves born, raised, and residing in America were made citizens.
“The 14th Amendment was NOT written to reward illegals who flout our immigration laws by making it impossible to remove them. This is what the actual lawmakers who voted on the Amendment at the time made plain in their statements.”
This assurance that citizenship would not be granted based solely on physical presence in the country was blurred by Wong Kim Ark and then erased by immigration policy. Ironically, under current law, children born of foreign diplomats on US soil do not obtain US citizenship, while children of those who enter the country illegally do. The majority of the world’s nations recognize citizenship by descent rather than geography. Numerous policy issues suggest a re-examination of birthright citizenship is overdue.
Current US policy creates numerous moral hazards. Wealthy foreigners visit America on travel visas timed for delivery, ensuring their children possess the precious privilege of US citizenship, much like President Barack Obama peddled that credential using the EB-5 Immigrant Investor Program. On the opposite end of the economic spectrum, desperate mothers and fathers around the world correctly view American soil as a baby delivery end zone. Crawl under barbed wire or sputter across the Rio Grande – give birth in the American jurisdiction, and the child will have a better chance in life. Pregnant women waiting in legal lines for US entry will birth non-US citizens: Breaking the rules rewards wrongdoers and punishes the unborn children of those who abide by the law.
Citizenship is connected to statehood and stability, which requires assimilation — not credentialization. Some 73% of children of illegals in America are estimated to be US citizens by birth. There is an Aid to Families With Dependent Children (AFDC) sort of incentive for illegals to get pregnant – their children will secure a familial foothold in America, including benefits for food, housing, healthcare, and economic assistance.
The US Supreme Court would evaluate the jurisprudential backdrop and add the odd and unintended policy consequences that have followed from prior interpretations: an incentive for people to enter the country illegally or get pregnant once here; monumental costs to the public purse, swollen exponentially in recent years; the inequitable effect on those who apply for citizenship legally. These are strong policy arguments to back a Trump executive order extinguishing birthright citizenship.
Another path would be the US Congress, led by Republicans and backed by a clear mandate by US citizens to clean up borders and reverse the flow of illegal immigration. There is nothing in existing law that would prevent Congress from simply enacting a law clarifying that birthright citizenship is not obtained when the mother is in the country illegally. Wong Kim Ark made no such holding; strong policy considerations support drawing a new line. Previous births could be grandfathered, and President-elect Trump’s expansion to shield children whose father or mother is a citizen or legal resident would additionally ensure a rebalancing that was more, not less, equitable to both foreigners seeking US citizenship and US citizens themselves.