Can Birthright Citizenship Be Revoked?

birthright citizenship

Can Birthright Citizenship Be Revoked?

Around the midterm elections in November 2018, immigration was a major topic discussed by politicians and news sources alike. In a few short weeks, President Trump lambasted asylum seekers approaching the United States border and discussed his desire to end birthright citizenship. While the president’s sweeping goals regarding immigration are not always clear, one fact is obvious.  Trump’s administration will make every effort to undermine legal immigration.

In October, the president officially announced via Twitter his intention to end birthright citizenship with an executive order. The elimination of birthright citizenship could have disastrous consequences for immigrants and naturally-born citizens alike. Because of this, many immigrants may be wondering – is it possible for Trump to eliminate birthright citizenship? In this article, we explore the history of birthright citizenship and its legal precedent. Additionally, we review current issues like “birth tourism,” consequences of repeal, and the likelihood of elimination.

If you or a loved one are worried about birthright citizenship, you should contact an expert immigration attorney. Most immigration law firms offer free consultations – you can talk about your concerns with a professional who will be able to help.

The History of Birthright Citizenship

Birthright citizenship is a solid and storied tradition in the United States, with deep roots reaching back well over a 100 years. In fact, it is constitutional right. Section 1 of the Fourteenth Amendment to the Constitution 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.” This means that any person born on American soil is immediately provided with citizenship as a birthright. Such rights are conferred no matter the status or citizenship of their parents.

United States v. Wong Kim Ark

In the 1800s, the Supreme Court upheld birthright citizenship. In United States v. Wong Kim Ark, the defendant was an American-born son of two Chinese parents. Born in San Francisco in 1873, Wong Kim Ark continually lived in the US with his parents. When they returned to China in 1890, he took two trips by sea to visit them. Each time, Wong Kim Ark returned to the US.

After the first trip, the US admitted Wong Kim Ark under grounds of birthright citizenship. But upon his return the second time, he was denied entry, with the official stating he was not a citizen of the US but of China. The court ruled in 1898 that the Fourteenth Amendment guaranteed citizenship to any person born in America, and no state can impinge upon this right. You can read more about the case, including the majority opinion and dissent, here.

Over 30 countries across the world, including our neighbors Canada and Mexico, provide birthright citizenship to anyone born within their territories. Therefore, it is an easy way to establish citizenship for the majority of the population. It’s also a clear cut and simple system. For natural-born citizens, a birth certificate is all that’s needed to prove US citizenship. Birthright citizenship keeps government oversight low. This is because there’s no need to require applications or reviews to establish citizenship for all those born within the country.

The Future of Birthright Citizenship

Birth Tourism

In 2018, politicians and recent events have brought attention to a practice called “birth tourism.” For some time, foreign nationals have come to the United States for the sole purpose of giving birth. Since any child born on American soil is a citizen, the child born to the foreigner would have full citizenship. This practice has gained national attention over the years and has drawn the ire of those critical of immigration. While there are instances of illegal birth tourism, most mothers who enter the US to have their babies do so legally. For example, The Huffington Post interviewed a Chinese mother who entered the US and declared her intent at customs.  That same article stated that in 2014, an estimated 60,000 Chinese mothers, many wealthy and well-connected, entered the US to have a baby.

Because birthright citizenship makes birth tourism possible, it is not surprising that anti-immigration advocates would target this Fourteenth Amendment right. President Donald Trump refers to babies born in this manner as “anchor babies,” an incorrect and disrespectful term. According to Trump, foreign families utilize birthright citizenship to undermine the immigration system and get an “in” to the US. Yet, again, those entering the country for “birth tourism” often do it legally. Further, any undocumented immigrants living in America who have children likely did not travel to the US for the sole purpose of childbearing.

Opponents of Birthright Citizenship

In October 2018, Donald Trump announced his intention to end birthright citizenship via executive order. Other leaders in Washington, including prominent Democrats and Republicans, refuted the president’s claims. For example, Paul Ryan stated that he “obviously” could not “end birthright citizenship with an executive order” because it is outlined in the Constitution. Yet, this does not mean that Trump will not attempt to find a way no matter the level of constitutionality.

Donald Trump Jr., in an opinion article written for The Hill in support of his father, calls birthright citizenship “absurd.” According to him, this is because it allows children of undocumented immigrants and others, including those utilizing birth tourism facilities, to receive the full rights of US citizenship. In his piece, Donald Trump Jr. also erroneously writes that the Supreme Court never favorably ruled on the Fourteenth Amendment, despite the fact that it did just that in 1898.

Consequences of Eliminating Birthright Citizenship

Some see elimination of birthright citizenship as a simple solution to a complex problem. Yet, such action is riddled with potential unforeseen and undesirable effects. First, the world witnessed firsthand the disastrous consequences of revoking birthright citizenship in Burma. According to Slate, the government used denationalization to persecute a minority group called the Rohinga, leaving “one million people stateless” instantly. Such stripping of rights also occurred recently in the Dominican Republic, leaving those targeted vulnerable to civil rights abuses, Slate reported.

Elimination of Birthright Citizenship Would Increase Immigrant Issues

Additionally, a Migration Policy Institute study revealed that unintended consequences awaited the US should it eliminate birthright citizenship. Instead of mitigating undocumented immigration concerns, it would likely heighten them. The MPI reports that elimination of rights for children of undocumented immigrants could increase the undocumented population by millions, possibly even doubling it by 2050. This would effectively create a new permanent underclass, according to the American Immigration Council (AIC), susceptible to prejudice and victimization.

Further, the current system of birthright citizenship is organizationally simple. It allows anyone born in the United States to prove citizenship with a birth certificate. Without this, options become more costly and complicated. The AIC expertly outlines several ways the elimination of birthright citizenship would affect everyone – not just foreigners or immigrant families. For example, without birthright citizenship, derivative citizenship would burden citizens and the government. The process would be lengthy, costly, and inefficient. The AIC also points out that without birthright citizenship, many Americans would likely be denied citizenship due to government oversight or error, leading to undue stress and additional processing times.

Additionally, the elimination of birthright citizenship would put hundreds of thousands of US children with undocumented parents in danger of deportation. Raised in America and naturally-born US citizens, these children would see their rights pulled out from under them. The result of such actions would be catastrophic for families. It would also be detrimental to the functioning of the US as a whole.

Can Trump Eliminate Birthright Citizenship?

United States v. Wong Kim Ark interpreted birthright citizenship rights via the Constitution and established legal precedent over 100 years ago.  Additionally, as a member of the executive branch, President Trump cannot eliminate a right outlined in the Constitution with an executive order. Such behavior violates the balance of power at the core of American government and functionality. Only Congress could adjust the Constitution via amendment. Yet, this requires a two-thirds majority in both the House and the Senate. Such an occurrence is not likely to happen anytime soon.  Even further, if an amendment were to pass Congress, three-fourths of states would need to agree to it – again, unlikely to happen in America today.

In conclusion, while it is possible to change or amend the Constitution, it involves a lengthy and arduous process that is prohibitive to the current administration. For many reasons, it’s unlikely that Donald Trump’s wishes to eliminate birthright citizenship will be realized. This is great news for immigrants and their families across the nation.

Contact an Experienced Immigration Attorney

Current mainstream American political rhetoric can leave immigrant families feeling insecure, scared, or worried. If you have concerns about birthright citizenship, the rights of yourself or a loved one, or face deportation, contact an expert immigration lawyer. An attorney specializing in immigration law can help guide you and your family no matter your specific situation. The lawyers at Nanthaveth & Associates work tirelessly to serve immigrants and their families in Austin, Texas. You can contact them today to schedule a free initial consultation.