Special Bulletin. Birthright Citizenship.

In a previous Special Bulletin, we briefly addressed the proposal made by Donald Trump (and supported in varying degrees by some other Republican candidates) to eliminate “birthright citizenship.” Birthright citizenship, as everyone must know by now refers to citizenship conferred on anyone who is born in this country without regard to the citizenship or status of his or her parents.

In our Special Bulletin posted on August 18, we wrote:

The grant of citizenship to persons born in this country is clearly provided by the terms of the 14^th Amendment and, whether one agrees or disagrees with that provision, there is, as a practical political matter, no chance whatever of passing a constitutional amendment to revoke it. Accordingly, to urge that such an amendment be passed, or even considered, merely inflames passions without serving any useful purpose.

We believe that analysis was essentially correct and we stand by it. On the other hand, the legal issue may less clear-cut than we suggested, and we thought that we owed readers some further explanation and discussion.

On August 18, Trump asserted that children of illegal immigrants are not citizens: “I don’t think they have American citizenship and if you speak to some very, very good lawyers — and I know some will disagree — but many of them agree with me and you’re going to find they do not have American citizenship.” The Wall Street Journal, among others, was not impressed. In an August 20 editorial, “Born in the U.S.A.,” the Journal argued:

Mr. Trump may pay for top-flight attorneys in his real-estate dealings but his constitutional counsel isn’t so hot. In 1868 the U.S. adopted the Fourteenth Amendment to overturn the Dred Scott decision. As school children learn but too many adults forget, the Supreme Court had held in 1857 that the descendants of slaves, even free blacks, could not be American citizens.

So far as we know, no one has stepped forward to claim the roll of Trump’s constitutional counsel, and we do not know, any better than the Journal does, who they might be. Nevertheless, there have been respectable and respected voices from the legal community who have, in the past, argued that it would be permissible for Congress to legislate restrictions on birthright citizenship. Such voices have included Prof. Peter Schuck of the Yale Law School and Richard Posner, an influential judge on the United States Seventh Circuit Court of Appeals. In a lengthy dictum in a 2003 case, Judge Posner described the policy of birthright citizenship as “nonsense” and suggested that “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” So, what is the argument?

The first sentence of Section 1 of the 14^th Amendment provides:

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 heart of the issue involves the meaning of the qualifying phrase “subject to the jurisdiction [of the United States].” It has long been understood, and the Supreme Court held in an 1898 case, that the exception was based on English common law and was intended to deny citizenship to three groups, children of (1) Indians (until granted citizenship by statute in 1924); (2) foreign diplomats; and (3) enemy forces engaged in hostile occupation. Challengers of birthright citizenship point out that the 1898 case, United States v. Wong Kim Ark, did not involve children of illegal immigrants and they are correct. Wong Kim Ark was born in San Francisco to Chinese parents who were not citizens but were lawful residents. On the other hand, there is nothing in the lengthy opinion of the Court that, in our view, indicates that the Court would have broadened the exception to include children of illegal aliens. On the contrary, interpreting the exception clause, the Court seemed clearly to find “jurisdiction” to be essentially a matter of geography.

On balance, we continue to believe that the 14^th Amendment does confer a right of citizenship on children of illegal aliens born in this country, but we acknowledge that the constitutional question may not be entirely free from doubt. As a political matter, however, the issue clearly remains one that we think Republicans would be ill-advised to pursue. Passage of legislation denying citizenship to children of illegal aliens would doubtless require not only a Republican President but a Republican majority large enough to cut off debate in the Senate. And even if those conditions were met, the legislation would face a controversial path through the courts with an ending uncertain at best. In short, it appears to be a largely chimerical quest. At the same time, while continued attacks on birthright citizenship might generate enthusiasm among the nativist elements of the Republican Party, they would further alienate the Latino community. As Governor Kasich recently put it, the issue is a “stumbling block” that the Republican Party should leave behind.

Finally, even if accomplished, the revocation of birthright citizenship would do little to resolve the larger immigration problems with which we continue to struggle. The best estimate of children born to illegal immigrants each year is approximately 300,000, but such children are not “anchor babies” as many understand the term. Contrary to a popular perception, having a child who is a citizen confers no benefit on the child’s parents until the child reaches 21 and is able to be a sponsor. The term “anchor babies” should also not be confused (as Governor Bush recently appeared to) with “birth tourism,” a practice by which middle- and upper-class visitors, most often Asian, travel to the United States legally, on tourist visas, to have a baby here.

In the case of illegal immigrants, there is no reliable evidence as to how many come to the United States for the purpose of having a child who will enjoy the benefits of citizenship. In any case, the fundamental answer, in our view, is more effective border control coupled with comprehensive immigration reform. If that is ever accomplished, it may be possible to consider the merits and demerits of birthright citizenship in an atmosphere less fraught politically. Opponents of birthright citizenship have pointed out that the United States is one of relatively few countries that recognize such a right. On the other hand, as The Wall Street Journal retorted, “The immigration hawks are correct that birthright citizenship is unusual among nations, but since when did Republicans dump their belief in American exceptionalism?”