An Immigration Lawyer On The Truth About Birthright Citizenship

GOP front-runner Donald Trump’s immigration plan, released on Sunday, can be easily summarized in the candidate’s own four words: “They have to go.” The plan is little more than a nativist wish list, with a bold kicker: an end to so-called “birthright citizenship,” the constitutional rule that a child born in and under the jurisdiction of the U.S. is a citizen.

This position is not new. Over the years, there have been attempts by restrictionists to challenge birthright citizenship. In the 1800s, the focus was Chinese immigrants. Of late, the effort has been focused on Latino immigrants, led in Congress by Rep. Steve King (R-IA) and, more recently, Sen. David Vitter (R-LA), who believe they can end this constitutional provision with legislation. Earlier this year, Vitter tried to attach an amendment to the Justice for Victims of Trafficking Act, which provided that a child born in the United States would be considered a citizen only if at least one parent is a citizen, is a lawful permanent resident, or has served in the military.

Now, opposing birthright citizenship may emerge as a kind of litmus test for Republicans; earlier this month, New Jersey Gov. Chris Christie said we should “re-examine the 14th Amendment.” But before that happens, let’s get a few facts straight.

Trump claims that birthright citizenship must end because it’s the “biggest magnet for illegal immigration”— it attracts illegal immigrants using their “anchor babies” to reap the benefits of U.S. citizenship. In fact, being the undocumented parent of a U.S. citizen bestows no legal right to even be in the country, let alone to a green card or citizenship—just ask the thousands of undocumented parents deported and barred from the U.S. each day by the Department of Homeland Security. The law requires that to sponsor an undocumented parent for a green card a child must first reach the age of 21. But at that point—more than two decades after arrival—an undocumented parent who entered illegally is not eligible to apply for a green card in the U.S. The parent must leave and apply abroad. And once the parent departs the U.S., another part of the law bans his or her return for 10 years.

The “magnet” to which Trump refers is an arduous 31-year-long slog to legal status for the undocumented parent: 21 years for the child to be able to sponsor the parent and 10 years of banishment from the U.S. because of their previously unlawful presence. Perhaps that’s why Trump and others who oppose birthright citizenship have failed to produce any evidence of hordes of pregnant women streaming across the border illegally (or even legally) to give birth. There’s no evidence that this is a widespread phenomenon—for instance, less than 2 percent of Arizona babies were born to nonresident mothers in 2010.

But facts don’t seem to matter to Trump. So it’s worth asking: What would it take for the United States to end constitutional citizenship?

There are those who believe that birthright citizenship could be eviscerated by a mere statutory tweak. The theory is founded on the claim that the 14th Amendment was ratified to grant citizenship to recently freed slaves and not to every person born in the U.S. If the law is changed to hold that the children of undocumented immigrants are not within the “jurisdiction” of the U.S. — as required by the 14th Amendment — then the children of undocumented immigrants may be deprived of citizenship at birth.

But while the Supreme Court has not directly addressed the question of whether the children of undocumented immigrants are eligible for birthright citizenship, Trump’s proposal would most likely require a constitutional amendment. That’s because the 14th Amendment grants citizenship to “all persons born or naturalized in the United States, and subject to” its jurisdiction. Directly overruling the infamous Dred Scott decision and codifying the common law rule that a person born within the jurisdiction of the U.S. is an American citizen, the 14th Amendment forms the cornerstone of American civil rights by ensuring due process and equal protection to all persons.

What would America look like without constitutional citizenship? Ironically, the likely result would be to make America’s broken immigration system even more shattered and at great humanitarian cost. According to the Migration Policy Institute (pdf), repeal of birthright citizenship would lead to a dramatic increase in the number of unauthorized children living in the U.S. — as many as 24 million by 2050. The Immigration Policy Center argues that “[r]epealing birthright citizenship would create an underclass of unauthorized immigrants who, through no fault of their own, would be forced to live in the margins of U.S. society, would not have access to health care and basic services, would be vulnerable to exploitation and abuse, and would be at constant risk of deportation.”

When it comes down to it, the Citizenship Clause of the 14th Amendment has very little to do with immigration; it is fundamentally focused on the preservation of civil rights. Trump’s extremist proposal to end birthright citizenship — whether by elimination or reinterpretation of the Citizenship Clause — comes at the grave cost of abridging civil rights, even hearkening back to the days of Dred Scott, when people were viewed as commodities to be bought and sold. Rather than challenge a constitutional provision that reversed a notorious Supreme Court decision, the effect of which was to dehumanize and deprive African-Americans of U.S. citizenship, Trump would better serve the GOP, and this nation, by proposing serious immigration policy solutions.

David Leopold practices immigration law in Cleveland. He is past president of the American Immigration Lawyers Association.