IF HE returns to the White House, Donald Trump vowed last week, he will sign an executive order on his first day to make certain that, "under the correct interpretation of the law," the children of undocumented immigrants "will not receive automatic US citizenship."
 Donald Trump says that if he returns to the White House, he will issue an order ending automatic citizenship for babies born in the United States to unauthorized immigrants. The Constitution says otherwise. |
If that sounds familiar, it should. Trump has been fulminating against birthright citizenship — the assurance that all persons born in America are American citizens — for years.
He railed against it as a candidate for president in 2015, saying that only Americans would be "stupid enough" to accept such a system. In 2018, he told an interviewer that birthright citizenship would be revoked by an executive order, which he was preparing to issue. "It's in the process," he said. "It'll happen." It didn't happen, but the following year Trump again told reporters that he was "looking ... very, very seriously" at issuing an order to withhold US citizenship from children born to mothers who entered the country without legal authority. Following Trump's failed reelection bid a year later, his aides claimed an order to end birthright citizenship had been drafted and indicated Trump would finalize it before leaving office.
No order was ever issued. Which was just as well, since no presidential decree can overturn a provision of the Constitution.
The principle that anyone born on US soil is a US citizen has been enshrined in American law since the 14th Amendment was ratified in 1868. That amendment, one of the Republican Party's proudest achievements, opens with the words: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The immediate effect of that clause was to repudiate Dred Scott v. Sandford, the notorious Supreme Court ruling that had denied citizenship to anyone of African descent. But the amendment was written so its guarantee would extend far beyond Black Americans, as critics at the time bitterly complained.
Senator Edgar Cowan of Pennsylvania, for example, opposed the amendment because it would bestow citizenship on "the child of the Chinese immigrant in California" or "the child of a Gypsy born in Pennsylvania." Grant citizenship to anyone born in America, he warned, and the country could be "overrun by a flood of immigration of the Mongol race" or by "man-eaters or cannibals" from Borneo.
But Congress, unmoved by such racist arguments, overwhelmingly approved the amendment. Within months, three-fourths of the states had ratified it. Birthright citizenship has been a pillar component of American life ever since.
Immigration restrictionists sometimes claim that the phrase "subject to the jurisdiction thereof" was meant to withhold citizenship from children whose parents have no lawful right to be in the country. The Supreme Court shot down that argument long ago. With only rare exceptions, such as babies born to foreign diplomats who are exempt from US law, the court affirmed in 1898 that birthright citizenship cloaks all "children born within the territory of the United States" — regardless of their parents' legal status.
The justices underscored that point as recently as 1982, noting in Plyler v. Doe that "no plausible distinction with respect to 14th Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." In 1995, the Justice Department's Office of Legal Counsel advised Congress that a proposed law to deny citizenship to children born in the United States to undocumented immigrants would be "unconstitutional on its face."
So while Trump pretends that birthright citizenship can be arrested by executive order, in reality it cannot be done without amending the Constitution. The likelihood of that happening is, in round numbers, zero.
Which is a good thing. Abolishing birthright citizenship would mean that several hundred thousand newborns each year would begin life as stateless residents. That wouldn't reduce the undocumented population, it would enlarge it. According to the nonpartisan Migration Policy Institute, "ending birthright citizenship for US babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million by 2050." Could anything be more contrary to our nation's tradition and ideals than the creation of a caste of people, born in America but permanently excluded from the American family?
Why should citizenship be a birthright? Because America is unlike the Old World, where the status of citizens so often depended on having the right ancestors, owning land, or winning favor with the powerful. Not here. The 14th Amendment's authors established a single standard for citizenship: If you are born in America, you are an American — regardless of your ethnicity, your parents' legal status, or the occupant of the White House.
(Jeff Jacoby is a columnist for The Boston Globe).
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