It never made sense to me that the offspring of two foreign nationals would automatically attain U.S. citizenship only because they were born on American soil – but there was a good reason when the 14th Amendment was adopted in 1868.
The issue that motivated the enactment of the Amendment was the end of slavery – and to nullify the Supreme Court Dred Scott decision of 1857, which banned Black Africans – including Black freemen – from citizenship. Birthright citizenship was crafted to thwart efforts to deny Black citizenship by guaranteeing citizenship to newborn Blacks regardless of the previous status of the parents as citizens or not.
The problem with the Amendment is that it has outlived its purpose and utility – and has led to abuse as America shifted more and more to a nation of immigrants. It reversed the law and the logic of parents becoming citizens with underage children automatically following. Adult children would have to apply for citizenship on their own.
Birthright citizenship created a situation in which the child of immigrants (including temporary workers, foreign students, visitors and even illegal border crossers) are automatically declared to be citizens of the United States even if their parents were not.
Today, the abuse of the 14th Amendment is its most common application. It has resulted in a phenomenon known as “anchor babies.” Foreigners come to America while pregnant for the explicit purpose of birthing their children in the United States. They then use that fact of their child’s citizenship as leverage to remain in the United States and potentially seek citizenship for themselves.
The “anchor baby” issue is not limited to Mexicans and other South American migrants. Asians and Africans also use the 14th Amendment to give birth in America. I have personally seen examples of that in my dealings in China. Approximately 24 percent of all births in America are birthright citizens. That means of the approximate 4 million births each year more than 900,00 birthright citizens.
It complicates the current border crisis because it complicates the issue of deportation. In many cases, the parents are here illegally, ineligible for asylum, under deportation orders and, in some cases, convicted criminals. Applying American immigration laws – including deportation – has the potential of separating parents from their children. That has become a controversial political issue. The “anchor baby” strategy tends to work.
(It should be noted that the concern over separating children from their parents who break the law applies largely to illegal immigrants. When American parents break a law, we send them to jail. We do not excuse them from justice – the rule of law — because they have children. They get separated from their children. The responsibility for that is on them, not on those who enforce the law.)
Birthright citizenship has not only outlived its purpose, but it creates untoward and unnecessary immigration issues.
President Trump has followed up on his promise to attempt to end birthright citizenship. On his first day of his second term, he signed an Executive Order to fulfill his campaign promise. But … there is a catch. Birthright citizenship is in the Constitution.
Consequently, several federal judges have issued injunctions to block the order from being implemented pending a full court hearing. Many legal scholars – and I dare say most – believe that the Supreme Court would eventually uphold birthright citizenship based on the way the 14th Amendment is written. But as with many constitutional issues, there is interpretive wiggle room – but not a lot.
Trump critics have been quick to call the court stepping in as a setback — and even a defeat for Trump. But is it?
I have no doubt that Trump and his advisors knew the courts would block immediate implementation. I also believe that they are well aware that their chances in court of less than 50/50. So, why issue the Executive Order in the first place? I think there are several reasons – and they all accrue to Trump’s benefit.
First and foremost, he shows those who oppose birthright citizenship that he is trying – and will continue to fight. According to an Emerson University poll, 45 percent of Americans support Trump on the issue with 37 percent opposed. The polls show a rather high 19 percent with no opinion on the issue. Other polls tell a different story. The YouGov poll shows 60 percent of Americans favoring the retention of birthright citizenship.
Those numbers suggest that should Trump fail to end birthright citizenship, he may benefit both ways. He will have held his base by trying but will never be blamed for actually ending it.
By issuing the Executive Order, Trump has made birthright citizenship a front burner issue. As more folks learn about the downside of birthright citizenship, and the abuses are brought to the fore, there is opportunity for a shift in public opinion. That also serves Trump’s interests.
Trump’s action could eventually lead to an effort to amend the Constitution — which would create a national debate. That could be a game-changer. Whether birthright citizenship is ended or not, Trump may wind up the winner on the issue.
So, there ‘tis.