Love him or hate him, President Trump has a knack for stirring up controversy. In late October, Trump declared on an interview with Axios on HBO that he was considering using an executive order to end birthright citizenship altogether in the United States. Even though he has examined the possibilities of various methods to prevent illegal immigrants from becoming citizens in the past, it still came as a shock to the country that he was considering attempting action. Arguing that the current latitude of the immigration system is injuring the nation, Trump has initiated debate about immigration and the nature of the 14th Amendment that needs to be addressed.
As the Constitution is currently written and interpreted, Trump cannot make this adjustment using only an executive order. 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,” establishing that anyone born in the United States is a citizen. This understanding has also been explicitly affirmed by the Supreme Court. In United States v. Wong Kim Ark (1898) a man of Chinese descent was refused entry into the U.S. because of his ethnicity, despite having documentation of his birth within the country. The Court concluded that it was unconstitutional to deny anyone citizenship if they were born in the United States.
Therefore, if Trump or the Republicans wish to eliminate the practice of birthright citizenship, an executive order would not be sufficient to overturn the language of the 14th Amendment. There would need to be either a new constitutional amendment that negates the language of the 14th Amendment or a court ruling that overturns the current interpretation. A constitutional amendment at this point seems impossible, given that it would require a two-thirds vote in both chambers of Congress to even reach the proposal stage, and the House of Representatives will soon be populated by a Democratic majority that would never consider such a measure.
A reinterpretation by the Supreme Court is not out of the question, for it has been suggested by certain constitutional scholars that the wording “subject to the jurisdiction thereof” actually would exclude children of illegal immigrants from becoming citizens. Given its conservative nature, it is conceivable the present court could take a similar interpretation that would reject the amendment’s applicability in regard to these children. However, Republicans hoping for an end to birthright citizenship through Trump’s executive order would likely be frustrated in the short term by Democratic efforts to challenge and dispute its execution. The order would be then taken to court, but it would be a lengthy and laborious process before the case could pass through the judicial system to reach the Supreme Court, and only then would there be hope for a reinterpretation of the 14th Amendment.
Therefore, as it stands, it does not appear that Trump will be able to legally change America’s policy on birthright citizenship in the near future. Even members of his own party, such as Speaker of the House Paul Ryan, have admitted that an executive order of this nature would be an overreach of Trump’s presidential powers. However, the mere suggestion of such a policy has ignited discussion of the possible consequences of revoking a path to citizenship for the children of illegal immigrants, causing debate over whether the practice of birthright citizenship is truly an issue in the modern day that needs to be addressed.
The Dominican Republic restructured its Constitution in 2010 to include a provision that removed birthright citizenship. Lawmakers were attempting to address concerns of the influx of Haitians born in the country. However, the government went one step further, using the courts to decide that if a citizen could not prove that their parents were legal residents in the Dominican Republic, their citizenship could be revoked. This has stripped legal nationality from some 60,000 people of Haitian descent. In the tumultuous years since, deportations and a confusing registration process have led to riots and lynchings. Economic growth has also been slowed because of a reduction of people in the workforce.
This measure serves as a litmus test for America. The government’s hardline stance on birthright citizenship has led to an exacerbation of racial tensions within the country, something that America definitely does not need. While Trump did not suggest removing citizenship for those who have previously been born to illegal immigrants, that doesn’t mean that such a proposal may not arise. Even if Trump were actually able to create this change in American policy, we should question whether it would truly advantageous to do so by looking to the problems created within the Dominican Republic.
Much of the concern about birthright citizenship is that it leads to rampant chain migration. When someone is a citizen, they are allowed to petition for their immediate family members to earn a visa, and then after five years they too could become citizens. Chain migration means that if an individual who had received a petition becomes a citizen, they themselves could issue petitions, and those recipients could issue petitions, and so on until thousands and potentially millions of foreigners have become U.S. citizens.
This situation could hypothetically create problems of unprecedented population growth and economic shock. However, in reality, this is a non-issue. The family visa system is so badly backlogged that the U.S. is currently processing visa requests from 1993 for people from Mexico and the Philippines. For other countries such as China and India, the process isn’t as long, but the waiting period is still currently about 20 years. Therefore, it is unrealistic to assume that illegal immigrants having “anchor babies” in order to become citizens is a legitimate problem since it would take decades before their plan would be realized.
Another fact worth noting is that the number of children born to unauthorized immigrant parents has been steadily decreasing since 2007. In 2016, around 250,000 babies were born in the U.S. when their parents were not citizens, a 36-percent decrease from its peak before the Great Recession of around 390,000. These statistics would imply that birthright citizenship has become less of an issue in recent years, bringing up the question of why we are discussing the sudden push for its removal.
Some have suggested that it was Trump’s way of creating conversation and playing to the fears of his Republican base prior to the midterms. Along with inflammatory rhetoric about the caravan making its way through Central America, the debate on birthright citizenship dominated the news and political talk shows. After all, Trump’s background in reality TV has taught him how to build suspense and play with his audiences.
However, removing birthright citizenship is not a notion that should be toyed with. Its removal would likely cause domestic unrest and potentially hurt the economy. Additionally, it no longer seems as serious of an issue as Trump makes it seem. If the government truly wants to reform the immigration system, they should focus on securing the border, or what should be done about the 700,000 Dreamers who benefit from DACA. There is no point in threatening a legal tradition that is practiced by 30 out of 35 nations in the Western hemisphere, especially if it was just an attempt to scare America into a few more Republican votes. Instead of challenging a precedent over one hundred years old, perhaps we should continue to respect the ideas of inclusion and acceptance that have made America the place it is today.
Categories: Domestic Affairs