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 actually be able to get a change in the law.
Can He Do It?
Longstanding US policy has granted citizenship to those born on US soil, even if neither parent is a citizen and the birth occurs while the 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 these 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: The president-elect has vowed to challenge this unaddressed jurisprudential gap.
A Brief Constitutional History
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.
Birthright Citizenship Hurts the Nation
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. 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 to give birth in the American jurisdiction, and the child will have a better chance in life – but 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.
If a second-term President Donald Trump issues an executive order eliminating these adverse policy outcomes, a US Supreme Court challenge would present the question unanswered by Wong Kim Ark: Does the Fourteenth Amendment grant citizenship to those born in the United States to parents here illegally? The legislative history explicitly suggests it does not, as does the incongruous result that children of invited dignitaries are deprived of what children of illegals are currently granted.
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, and strong policy considerations support drawing a new line. Previous births could be grandfathered, and the end result could be a rebalancing that is more, not less, equitable to both foreigners seeking US citizenship and US citizens themselves.
