By: Attorney Ben Loveman
President Trump announced that his administration is preparing an executive order to end birthright citizenship. This announcement was met with outrage and skepticism from his critics, who argue that the move would be both unconstitutional and un-American. Critics also suggest that the announcement is another example of President Trump trying to motivate Republican voters ahead of next week’s crucial midterm elections.
In support of the announcement, President Trump claimed that “we’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.” In fact, at least 30 other countries, including Canada and Mexico, have birthright citizenship. Despite near consensus on the illegality of unilaterally ending birthright citizenship, Vice-President Mike Pence said that the Constitution is not clear on the issue and that the language of the Constitution leaves open the possibility that only persons born in the U.S. to U.S. citizens or lawful permanent residents should automatically become citizens.
At issue with the proposed policy is the language of the 14th Amendment to the Constitution, which states, “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 language has long been universally interpreted to mean that any person born in the U.S. is automatically a U.S. citizen.
Any proposed executive action would apparently seek to undermine the amendment process by offering a different interpretation of the words of the 14th Amendment so as to not require any change to the Constitution. The Constitution is not subject to revision or reversal through executive action, instead requiring a 2/3rd majority vote in both houses of Congress and then ratified by 3/4th of state legislatures. However, some supporters of this proposed change argue that the language of current Amendment should be read as including only children of lawful residents or U.S citizens, though they do not cite any authority for this position.
Human Rights advocates argue that eliminating birthright citizenship would create a permanent sub-class of children born in the United States. The executive director of Lawyers’ Committee for Civil Rights Under Law, Kristen Clarke, roundly criticized the proposal stating, “The letter and spirit of the Fourteenth Amendment places those born in this country on equal footing, and an executive order that strips away citizenship would create a permanent group of second-class citizens and invite litigation.”
Many legal experts suggest that it is unlikely that President Trump’s proposal could be successfully carried out, despite his party controlling both Houses of Congress and being in control of the U.S Supreme Court. However, recent events, including the election of President Trump, have shown that almost anything is possible and that the President’s proposal cannot simply be ignored.
In the end, the proposal to end birthright citizenship my never actually be implemented. Perhaps, as some political pundits have suggested, this really is just a way to increase voter turnout for the Republican party in a midterm election where Republican control of Congress is at jeopardy. While the legality and seriousness of the proposal is in question, it should serve as a reminder to everyone that we need to make our voices heard through the upcoming election.
For non-U.S. citizens, who are obviously not eligible to vote next week, it is a reminder of the importance of U.S. citizenship. While your election efforts in 2018 may be limited to helping friends or family get to the polls or encouraging them to vote, it is also important to seriously consider applying to become a naturalized U.S. citizen. If you have been a lawful permanent resident for the required number of years, have good moral character, etc., now is the time stop being a green card holder and start being a U.S. citizen.
The proposal to end birthright citizenship may not directly affect you, though it is likely to affect someone you know. Consult a knowledgeable and experienced immigration attorney today to discuss how and when this change may take effect, as well as the possibility of becoming a naturalized U.S. citizen.
