 Birthright citizenship isn't a privilege that presidents can bestow or withdraw at will. It is a constitutional mandate, enshrined in the 14th Amendment. |
During an appearance on NBC's "Meet the Press," President-elect Donald Trump on Sunday reaffirmed his longstanding determination to do away with birthright citizenship — the timeless principle that anyone born on US soil is a US citizen, regardless of the race or citizenship of their parents.
"We have to end it," he told his interviewer. "It's ridiculous." Trump has pledged to issue an executive order on his first day in office blocking federal agencies from treating infants born in the United States as citizens if their parents are undocumented migrants.
It isn't a new position. Trump derided birthright citizenship during his first presidential campaign and announced in 2018 that he planned to revoke it by an executive order that was "in the process" of being drafted. He said much the same thing in 2019 and again in 2020, but no order was ever issued.
Maybe he's serious this time or maybe he isn't, but it makes no difference. Birthright citizenship isn't a privilege that presidents can bestow or withdraw at will. It is a constitutional mandate, enshrined in the 14th Amendment, which was ratified in 1868: "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."
The meaning of that constitutional language has never been in doubt. Though the amendment's Citizenship Clause was drafted specifically to nullify the Supreme Court's execrable Dred Scott decision, which denied birthright citizenship to anyone of Black African descent, its intended scope was considerably broader.
Some in Congress opposed the amendment for that very reason. Senator Edgar Cowan of Pennsylvania warned that if the clause were added to the Constitution, a state like California could be "overrun by a flood of immigration of the Mongol race" or by others he regarded as inferior. "Is the child of a Gypsy born in Pennsylvania a citizen?" he asked scornfully, referring to Roma immigrants. He demanded to know if "people from Borneo, man-eaters or cannibals if you please," would likewise be entitled to citizenship.
Congress, unmoved by such xenophobic arguments, approved the 14th Amendment by lopsided majorities. Within six months, it was ratified by three-fourths of the states. Trump can deride birthright citizenship as "ridiculous," but it is bedrock constitutional law.
Federal courts have repeatedly affirmed that the Citizenship Clause means what it says. In US v. Wong Kim Ark (1898), the Supreme Court ruled that a man born in the United States to Chinese parents was a US citizen — even though his parents had left the United States after passage of the racist Chinese Exclusion Act, which made it illegal for migrants from China to become naturalized citizens. Federal prosecutors tried to argue that birthright citizenship didn't include Wong, and that since his parents were Chinese, he was too.
The Supreme Court shot them down. "In clear words and in manifest intent," Justice Horace Gray wrote for the 6-2 majority, the 14th Amendment's guarantee of citizenship "includes the children born, within the territory of the United States, of all other persons, of whatever race or color." The only babies born on American soil who aren't entitled to automatic citizenship are those whose parents are not "subject to the jurisdiction" of US law, namely foreign diplomats or soldiers of an invading enemy in wartime.
Anti-immigration activists and politicians may resent that rule, but as even conservative legal experts will tell them, it is the law of the land.
Birthright citizenship "is protected no less for children of undocumented persons than for descendants of Mayflower passengers," James C. Ho, a Trump appointee to the Fifth Circuit US Court of Appeals, wrote in a 2015 essay. "Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most US-born children of aliens, including illegal aliens."
In short, birthright citizenship is a constitutional entitlement that cannot be abrogated by executive order or even legislation. If Trump or Republican nativists in Congress want to change generations of settled law and withhold citizenship from children born to migrants who entered the country without authorization, their sole option is to amend the Constitution.
It is one of the finest aspects of American exceptionalism that American citizenship is extended to all who enter the world within America's borders. Thanks to the 14th Amendment, their rights do not depend on the color of their skin, the blood in their veins, the religion of their forbears, or the immigration status of their parents. The Constitution says that every baby born here is the equal of every other. Children are not spurned because their mother and father are noncitizens. That isn't a "ridiculous" policy but a sublime one, and it would be a grievous error to overturn it.
Jeff Jacoby is a columnist for The Boston Globe.
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