In the past, both Democrats and Republican legislators have introduced legislation that sought to limit the application of the Citizenship Clause of the 14th Amendment of the U.S. Constitution, which was enacted in the aftermath of the Civil War to enfranchise former slaves. For example, Sen. Harry Reid (D-Nev.) introduced a bill in 1993 to limit birthright citizenship to the children of U.S. citizens and legally resident aliens. Since then, similar legislation has been introduced in every Congress. In an interview with Spero News, Ira Mehlman of the Federation of Americans for Immigration Reform said that Congress must act to address the prospect of the arrival of the so-called migrant caravans at the U.S. border and the resultant birth of new American citizens to illegal alien parents. Those children are immediately eligible for all of the benfits of American citizenship, including food assistance, medical care, and education.

Each year, between  300,000 to 400,000 children are born to illegal immigrants in the United States. The U.S. government automatically recognizes these children as U.S. citizens upon birth, despite the foreign citizenship of the parents or their visa status. The same is true of children born to tourists and other aliens who are legally but temporarily present in the United States. Mass illegal immigration and large-scale tourism are recent phenomena that critics of birthright citizenship say should cause reflection as to whether automatic “birthright citizenship” should be conferred to children born in the country without regard to the duration or legality of the mother’s presence in the country.

According to the Center for Immigration Studies, the population of U.S.-born children with illegal alien parents expanded rapidly in recent years from 2.3 million in 2003 to 4 million in 2008. CIS said that the figure is much larger because the figures do not include children who are 18 years of age or older nor those who are married. Advocates for reform contend that addressing birthright citizenship is key in stemming the influx of immigrants.

Rep. Steve King (R-Iowa) introduced a bill in January 2017 to limit birthright citizenship, and Sen. Lindsey Graham (R-S.C.) said this week that he will introduce legislation to end birthright citizenship after President Trump said that he may do so by executive order. "Finally, a president willing to take on this absurd policy of birthright citizenship. I’ve always supported comprehensive immigration reform — and at the same time — the elimination of birthright citizenship," Graham tweeted. The senator tweeted that his bill will resemble Trump’s proposed executive order, which is expected next week. Congress is out of session until Nov. 13.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said this week in an interview with Axios. "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order," the president added, before stating: "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 ... with all of those benefits."

In a rally in Florida on Wednesday, Trump said, "The Constitution does not — I say that to the media — does not require it. Read it. Because illegal aliens are not subject to the jurisdiction of the United States,” Trump insisted, “We will keep the criminals, the drug dealers, we will keep them all out of our country,” he added. “We will get rid of all of this. We will end finally birthright citizenship.”

Vice President Mike Pence lent support to Trump, saying that while "we all cherish" the 14th Amendment, he suggested that administration may go ahead with the executive order. "The Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally,” Pence told Politico on Tuesday. 

Democrats and progressive groups panned Trump's comments. Joining other progressive groups, the ACLU tweeted, "This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms. The 14th Amendment’s citizenship guarantee is clear. You can’t erase the Constitution with an executive order." Also, Speaker of the House Paul Ryan, a Republican, told a Kentucky radio station this week "you cannot end birthright citizenship with an executive order," thereby flouting a sitting Republican president. In response, Trump tweeted, "Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about! Our new Republican Majority will work on this, Closing the Immigration Loopholes and Securing our Border!" Various news media, including CNN, concluded in their coverage that Trump was incorrect in asserting that an executive order can annul birthright citizenship.

Advocates for border security have called for building the wall the president has demanded, as well as addressing issues related to asylum and the automatic granting of citizenship to persons born in the United States, The Center for Immigration Studies, for example, has called on Congress to clarify the scope of the Citizenship Clause of the Constitution and whether “the United States should automatically confer the benefits and burdens of U.S. citizenship on the children of aliens whose presence is temporary or illegal.”

Among CIS’ findings:

  • Only 30 of the world’s 194 countries [many of which are in the Americas] grant automatic citizenship to children born to illegal aliens.
  • Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to illegal aliens.
  • No European country grants automatic citizenship to children of illegal aliens.
  • The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades.
  • 14th Amendment history seems to indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States.
  • The U.S. Supreme Court has held that the U.S.-born children of permanent resident aliens are covered by the Citizenship Clause, but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal.
  • Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.

American citizens born to illegal or legal aliens immediately qualify for all of the benefits available to native-born citizens, including food assistance and other welfare benefits to which a family of illegal aliens would not otherwise have access. The child thus born to illegal alien parents also has the right to petition for legal resident status for the parents and bring a foreign-born spouse and any foreign-born siblings. The sponsored spouse can, in turn, sponsor her own foreign-born parents and siblings, and the siblings can, in turn, sponsor their own foreign-born spouses, and so on, generating an ever-expanding migration chain.

Birthright citizenship outside of the U.S.

Citizenship is based on two legal principles: jus soli (the conferral of citizenship to persons born in the state's territory, or soil), and jus sanguinis (the conferral of citizenship to persons with a citizen parent or parents, or blood). Most countries grant citizenship on the basis of a combination of jus soli and jus sanguinis.

Australia, Canada, most Latin American republics, and the United States grant citizenship unconditionally to all persons born in their territory (jus soli) as well as to the children of their citizens who are born abroad (jus sanguinis). Countries that grant citizenship on the basis of jus sanguinis emphasize ethnicity and the descendants of citizenship. These include most European countries, thus making citizenship more difficult to acquire. Even though there has been some liberalization in Europe since 1999, no European country grants unconditional birthright citizenship to the children of immigrants. According to CIS: “The children of immigrants (second generation) in many European countries also must acquire citizenship; access to citizenship occurs only after fulfilling certain residency or age requirements. For example, second-generation children born in France of two non-French parents cannot become French citizens until they turn 18, provided they have resided in France for at least five years.”

In the interview with Spero News, Ira Mehlman reflected on the stream of migrants from Central America, saying “We have entered a whole new realm here,” adding that the so-called caravan is being used as a “political weapon, more so than ever before” against the United States. Potential asylum-seekers are not coming for political reasons, which constitutes grounds for asylum in the U.S., but because of economic privation, he said. By admitting the thousands of people headed to the U.S., Mehlman said that it would make the U.S. ostensibly responsible for “every government on earth that have not done their job” to relieve privation and other causes for the migration. 

Mehlman said that the U.S. “Congress is responsible to the people who elected them and has a duty to protect the interests and the security of the United States. Mehlman said that if it can be shown that the groups of migrants moving together through Mexico towards the southern border of the U.S. can be shown to be organized, rather than the confluence of individuals seeking to violate immigration laws, then Constitutional issues such as the sending of the military to the border do arise.

Mehlman suggested that President Trump should call Congress into session to address laws governing asylum in order to allow for extended detention of family units. Congress should overrule, he said, a judicial ruling that limits detention of families with children to just 20 days. Parents and children seeking asylum should be kept together in detention, he said, for a reasonable length of time until their asylum case is adjudicated. 

What Congress must do

In a backgrounder on birthright citizenship, the Center for Immigration Studies concluded:

"Because the legislative history is not decisive and there is no Supreme Court precedent, serious legal scholars and eminent jurists have argued that Congress should uses its inherent authority to define the scope of birthright citizenship. Congress can use the hearing process to promote a calm, informed, and serious discussion on the wisdom and legality of granting automatic U.S. citizenship to the children of “birth tourists,” illegal aliens, and other categories of foreign visitors who are taking advantage of a clause in the 14th Amendment that was primarily aimed at helping an entirely different class of persons.

"Whatever the outcome of such a debate, and whatever form resulting legislation might take, Americans could then at least feel confident that their country’s citizenship policy had become law through the political process and that the public had a say in determining the nation’s future. Should the United States end the practice of granting automatic and universal citizenship to anyone born on U.S. soil, the nation would be following a global trend already embraced by most of the world’s democracies."

When life imitates fiction

In 1973, French author Jean Raspail published “The Camp of the Saints,” which depicted a mass migration of the poor from Africa, Asia, and Latin America with the resulting destruction of Western civilization in Europe and North America. Mehlman said that the mass migration that has occurred in Europe in recent years outstripped Raspail’s fictional account. Raspail’s novel was praised in Douglas Murray’s “The Strange Death of Europe: Immigration, Identity, Islam,” which in turn describes how Europe has been overwhelmed by the influx of migrants since 2015 and the inability of its people and leaders to formulate a response. The arrival of more than 1 million migrants in Germany, and hundreds of thousands in other European countries, has contributed to upticks in crime and political instability.
 

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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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