One of President Donald Trump’s policy proposals that has drawn the most fire from his opponents are suggestions of doing away with birthright citizenship in America. According to the president’s detractors, the giving of citizenship to almost anyone born in the U.S. is guaranteed by the 14th Amendment to the Constitution and the Immigration and Nationality Act. In April, “If you have a baby on our land, congratulations,” Trump said. “That baby is a United States citizen. We’re the only one. Now Mexico has very tough policies. They can do whatever they want, which is the way it should be. You’re violating something very sacred. You’re violating a border.” 

He has suggested in the past that the Constitution does not, after all, does not offer the guarantees championed by immigration advocates. During a Republican debate in 2015, Trump said, ”A woman gets pregnant. She’s nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don’t think so.” Trump added, “And by the way, Mexico and almost every other country anywhere in the world doesn’t have that. We’re the only ones dumb enough, stupid enough to have it.” 

Ever since the 14th Amendment was passed in the years shortly after the Civil War, the Constitution has been cited to allow automatic citizenship to anyone born on U.S. soil, even if neither of the parents are. Currently, approximately 300,000 children --- or about eight percent of babies born in the U.S. annually -- are born to noncitizen parents but thus become citizens under the status quo.

According to the Pew Hispanic Center, in 2010, there were 4.5 million U.S.-born children whose parents were illegal aliens. The Center for Immigration Studies (CIS) estimated that nearly 200,000 children are born annually "to foreign women admitted as visitors, that is, tourists, students, guest workers, and other non-immigrant categories." 

However, Rep. Steve King (R-Iowa) has introduced legislation in Congress to bring an end to the practice. He first introduced the legislation in 2015, and long before then-candidate Trump suggested bringing an end to birthright citizenship. According to the bill, it would amend the Immigration and Nationality Act to consider a person born in the United States ‘subject to the jurisdiction’ of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien whose residence is in the United States, or (3) an alien performing active service in the U.S. Armed Forces.”

It goes on to say: “This Act shall not be construed to affect the citizenship or nationality status of any person born before the date of its enactment.” 

The bill currently has 42 co-sponsors. Among the original co-sponsors are Reps. Jeff Duncan, Paul Gosar, Dana Rohrabacher, and Brian Babin. There are no Democrats signed onto the bill. 

“Our nation must eliminate needless incentives that encourage illegal immigration and cost taxpayers significant amounts of money each year,” King says on his website’s issues page. “I do not believe it is in the best interest of our nation to continue tolerating the practice of illegal aliens giving birth to children in the U.S. in order to obtain citizenship for the child, then moving 

While the Immigration and Nationality Act that is currently on the books defines birthright citizenship, and there is a relevant clause in the 14th Amendment of the Constitution, the Supreme Court has not ruled as to whether they apply to illegal aliens. Currently, anyone born in the United States is given American citizen automatically regardless of whether the parents are U.S. citizens, legal residents, temporary visitors, or illegal aliens. This automatic citizenship is accorded by federal statute, not the 14th Amendment, argue critics of the practice. 

It is not in the Constitution

Noted legal scholar John Eastman of the Claremont Institute opined in the New York Times in 2015, "Birthright citizenship is not actually in the Constitution." He wrote, “The question of whether birthright citizenship should be abolished is based on the faulty premise that our Constitution actually mandates it. In fact, the text of the 14th Amendment’s citizenship clause reads: ‘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.’”

He continued: “That text has two requirements for citizenship — that an individual is born on U.S. soil; and that an individual is subject to the jurisdiction of the United States when born.”

Eastman wrote that the clause was modeled on the 1866 Civil Rights Act, which was passed in order to enfranchise previously enslaved black Americans, to grant citizenship to “all persons born in the United States and not subject to any foreign power.” The act provides that "All persons born or naturalized in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Eastman wrote that this clarifies, therefore, that any child born on U.S. soil to parents who were temporary visitors to and remained a citizen or subject of the parents' home country "was not entitled to claim the birthright citizenship provided by the 1866 Act."

The national security implications of birthright citizenship were brought to the fore in cases involving terrorists. Anwar al-Awlaki, Umar Farouk Abdulmutullab, and Nidal Malik Hasan all became citizenships by birthright. Awlaki, for instance, was born in 1971 to non-immigrant parents while his father was studying in the United States. He left the country with his parents to Yemen, but returned years later to become a mentor to the 9/11 hijackers before going back to Yemen and joining al-Qaeda. He was killed by a U.S. drone strike in 2011. 

Meanwhile, congressional Republicans are considering legislation that would grant a pathway to citizenship for so-called Dreamers who benefit from the Deferred Action on Childhood Arrivals policy enacted by Barack Obama during his presidency. Rep. King’s bill was referred to the Subcommittee on Immigration and Border Security of the Judiciary Committee. Since January, there have been no other legislative motions regarding the bill. Rep. Raul Labrador (R-Idaho) is the chairman of the sub-committee, of which Rep. King is also a member.


 

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Spero News editor Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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