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Even in 2015, “about half of Republicans wanted to amend the Constitution to repeal birthright citizenship—and the more conservative members of the tea party favored repeal by an almost 20-point margin, 57 percent to 40 percent” (Nowrasteh, 2018). Trump revisits the issue of birthright citizenship during his presidency. In late October 2018, he announced his plans to end birthright citizenship by an executive order. To many, abolishing birthright citizenship is the first step toward fixing the flawed American immigration system. But this solution places tremendous hardships on all Americans and immigrants. Without a national register of citizens, all babies born, regardless of their parents’ legal status, will have to jump through extensive and expensive legal processes to prove their citizenship. It is impractical for a nation of such diversity.
After the Civil War, birthright citizenship was officially enacted, specifically in 1868, following the ratification of the 14th Amendment. Section I of the 14th Amendment states that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and if the state wherein they reside.” During the Reconstruction Era, the Civil Rights Act of 1866 and later, the 14th Amendment granted citizenship to anyone born in the United States without the regard to their race or color. These actions reversed the Dred Scott case, which ruled that slaves and freed slaves were property of their owners, not citizens. The Civil Rights Act of 1866 and 14th Amendment granted citizenship and certain rights to blacks and protected minorities from an oppressive government.
The jus soli system simplifies the citizenship process. Today, only a US birth certificate is necessary to prove citizenship. Thus, most Americans do not keep official citizenship documents. As reported by the New York University School of Law, “more than 13 million American adults cannot easily produce documentation proving their citizenship” (Stock, 2012a).
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American children born overseas do not have this shortcut. Instead, they must go through a tedious process to prove citizenship by derivation. Parents are required to send official documents, including historical records, to either the USCIS or the US Department of Homeland Security for verification of the child’s citizenship. These requests cost about $600 per case and can take months to complete (Stock, 2012b). In addition, the current system is extremely complicated. Immigration attorneys often spend hours deciding if a person a derived citizen. The investigation includes tracing grandparents, parents, marriage and birth dates. Because of its lengthy verification process, the US government has frequently deported US citizens (Stock, 2012a).
Critics of birthright citizenship argue the constitutionality of jus soli. The current system completely disregards the second requirement for citizenship (as stated in the 14th Amendment): to be “subject to the jurisdiction” of the United States. According to Senator Trumbull, just being in the United States is not enough to be “subject to the jurisdiction” of the United States. Rather, a person must be free from allegiance from any other country (Eastman, 2015). Under these conditions, simply being born on American soil does not give the baby citizenship. The current policy has no legal or constitutional basis. Feere asserts, “…the practice has become policy without becoming law” (2010).
However, this practice has been the de facto policy since our establishment. The founding fathers modeled the citizenship process on the English common law: citizenship was granted to free people born in the country. During the American Revolution, the courts confirmed the validity of jus soli. Furthermore, in the 1857 Dred Scott case, Justice Benjamin Roberts Curtis argued that “natural born citizen” as it appears in Article II implies place of birth as it was the common definition of citizenship during the creation of the Constitution (Briggs, 2018). And “without becoming the law”? Multiple Supreme court cases before and after the ratification of the 14th Amendment have defended the constitutionality of the Citizenship Clause.
Lynch v. Clarke
Julia Lynch was born in New York to Irish parents. Soon after their visit, the family moved back to Ireland. Despite her brief stay in the US, the courts ruled that her citizenship was valid because she was born on American soil.
Prior to this case, citizenship had been a state issue, largely based on English common law. Judge Lewis Standford solidified the common policy into a national issue when he stated: “…the common law…prevails in the United States as a system of national jurisprudence” (Flournov, 1921, 551). In a country of such diversity, Standford also acknowledges the impracticality of citizenship by derivation. Consider how many different “types” of Americans live here.
No matter our color, name, ancestry, or religion the one thing we all have in common is that we were born here. That is what makes us American. The practice of citizenship by blood will not work here like it does in other countries. Except for Native Americans, all of our ancestors immigrated here, and thus, only a small group of people would be citizens if we used the traditional way passing citizenship. Jus sanguinis will only “lead to the perpetuation of a race of aliens” (Flournov, 1921, p. 551).
After thorough evaluation of the implications of jus sanguinis, the Court ruled that, “By the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, it a natural born citizen…” (Briggs, 2018).
The 1844 Lynch v. Clarke case from New York was one of the earliest Supreme Court cases upholding birthright citizenship. It paved the way for national laws on birthright citizenship and also became the basis for future Supreme Court cases regarding jus soli.
United States v. Wong Kim Ark
The 1898 United States v. Wong Kim Ark Supreme Court case became the model for the interpretation of the 14th Amendment. Wong Kim Ark was born in San Francisco, California. Due to the Chinese Exclusion Act of 1882, Ark’s parents could not become US citizens. Ark returned to China to visit his parents. When he returned, he was detained at border customs and denied entry on the basis that he was not a citizen. Once taken to court, the courts ruled that native-born children of non-citizen parents enjoyed the full benefits of U.S. citizenship.
Amid the anti-Chinese sentiment, the U.S government argued that one’s citizenship should be based on the “allegiance of a person’s parents.” However, the Supreme Court replied that “to hold that the Fourteenth Amendment…excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States” (Auvil, 2017).
To cut off citizenship to babies born to immigrant parents would be to invalidate citizenship to almost everyone in America, even those traditionally considered “American.” According to Auvil, denying citizenship to whole groups of people only because one’s “ancestors came 100 years too late [is] unfair and repulsive…” (2017).
Once the case was widely accepted, opponents turned to illegal immigrants and argued that Ark’s ruling only applied to children to legal immigrants, not illegal aliens, since Ark’s parents were legal residents. Senator Edgar Cowan questioned the granting citizenship to Chinese and Gypsies children whose parents had no allegiance to the United States. He feared the growing population of these unfavorable groups of people.
However, both the Plyer v Doe (1982) and Immigration and Naturalization Service v Rios-Pineda (1985) cases concluded that US born children of illegal immigrants are considered citizens due to the established definition of jurisdiction (Stock, 2012b). In all three cases, jurisdiction is defined as “foreigners who were subject to U.S civil law and criminal laws.” It excluded “foreign diplomats, invading armies, and sovereign Native American tribes (Stock, 2012b). Plyer v Doe makes clear that illegal immigrants are also “subject to the jurisdiction” of the US (“Amending the amendment,” 2010).
The most debated aspect of birthright citizenship is immigration. Critics argue that it encourages illegal immigration, leads to chain migration, and encourages birth tourism. The common opposing argument goes something like this: illegal parents give birth to a child, and the child automatically gets citizenship. The parents then receive welfare benefits, once of age (21?), the child legalizes their parents, then sponsor other family members, who can later sponsor their spouses and siblings. A native-born baby secures the parent’s legal presence and gives them welfare benefits, and creates a “chain migration of the child’s extended family and in-laws” (Feere, 2010).
Wanting to reap these benefits have led to a birth tourism industry were people come the US legally to give birth. (Feere, 2010). Many express concerns and agree with Circuit Court Judge Richard Posner that we “should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children” (Feere, 2010) These children are commonly referred as anchor babies. Once these children turn 21, they can sponsor their illegal parents. Amnesty. (Stock, 2012a). According to Stock, opponents without “hard data that the US does not benefit from birthright citizenship. And yet there is ample evidence that it does; hundreds of thousands of birthright citizens make tremendous…
Sponsorship and legalization does not work that way. Permanent residents and citizens can only sponsor close family: spouses, parents, children, and siblings (Dalmia, 2015). And it is not a quick process. A citizen child cannot legalize or sponsor their parents until they are 21. To obtain legal status, undocumented parents must exit the country and wait 10 years before reentering to qualify for legalization. This route of legalization take about 30 years. It is impractical and not reliable. An American born child does not prevent illegal immigrants from deportation. In fact, 73,000 undocumented parents were deported despite having American born children in 2013. 11,000 of the 73,000 had no criminal activity.
In addition, “only 4,000 unauthorized immigrants could qualify for relief from deportation every year, and then only if they had lived in the U.S. for at least 10 years” (Dalmia, 2015). The sponsorship process takes about 15-25 years per sponsorship, so the argument of chain migration is not a reality. At best, legal persons can only bring about two people into the country. This is not a “chain migration” of tens of people that most people argue against (Dalmia, 2015). It is not as simple as having a legal baby and all of sudden all off the aunts and uncles have a free pass into the country.
Furthermore, if we are concerned about illegal immigration, repealing birthright citizenship actually significantly increases the number of undocumented immigrants–a complete contradiction to their arguments. In 2014, 7 percents of all American births were from illegal parents. Denying citizenship to this group of children would increase the number of illegal immigrants 7 percent annually (Chapman, 2018). These children cannot apply for citizenship or even get a visa or green card because they were deemed illegal the moment they were born. Thus they could never apply for citizenship or gain a legal status.
Many examples various countries also show that the traditional, jus sanguinis system does not prevent illegal immigration.
History has shown that people come immigrate not for the prospect of being able to gain citizenship in a particular country, but rather for the job or other opportunities that country has to offer. The argument that Birthright citizenship is encouraging people to come does not account for other factors.
These illegals dry up our economy. So, instead of addressing…. let’s address the root of the problem: immigration problems. Birthright citizenship is central to the American identity and whether you realize it or not, it affects every single one of you. The costs of reform outweigh the benefits. Repealing birthright citizenship has severe implications for the united states.
