Donald Trump has raised the stakes in the Republican party’s discussion about immigration by calling for the end of so-called ‘birthright citizenship’ that automatically confers US citizenship to anyone born within US jurisdiction irrespective of the status of their families. This move by him, coupled with his idea of forcible removal of the estimated 11 million undocumented immigrants, has raised the nativist stance of the party to a whole new level.
There used to be no formal definition in the US of what makes someone a citizen but it was generally accepted that anyone born in the US, except for slaves, was a citizen. The 14th Amendment passed in 1868 following the civil war was meant to remove any doubt that slaves were Americans citizens and entitled to all the rights of citizenship.
Section 1 of that Amendment states that:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The issue arose concerning the phrase “subject to the jurisdiction thereof” because of ambiguity over its meaning. Did it just mean subject to US laws? In that case, anyone born in the US (other than to someone who was a diplomatic representative of another country) was entitled to citizenship. But if it meant someone who was only under the jurisdiction of the US, then if you were born in the US to parents who were citizens of another country, could you be said to be only under the jurisdiction of the US, since that country may also have some jurisdiction over you??
This issue came a head in the case of Wong Kim Ark who was born in San Francisco in 1873 to Chinese immigrants. In 1882 Congress passed the Chinese Exclusion Act prohibiting Chinese immigrants from acquiring naturalized citizenship. In 1895 Wong was denied re-entry to the US after a temporary visit to China (his parents had returned there in 1890). He sued and in 1898, in the case of United State v. Wong Kim Ark, the US Supreme Court ruled unequivocally but not unanimously in his favor, saying the anyone born in an area that was subject to US laws, including children of foreigners, automatically acquired citizenship. (You can read the 6-2 opinion here.)
Those opposed to granting citizenship to the children of immigrants argue that if the parents are citizens of another country, then they are subject to the jurisdiction of that country and thus their children are also subject to that jurisdiction and not entitled to American citizenship by birth. When people call for the denial of birthright citizenship, they are either arguing for the introduction of a new amendment specifically excluding the children of undocumented immigrants or suggesting that the US Supreme Court might review the Wong Kim Ark precedent and reinterpret the 14th Amendment along these new lines. But past attempts to achieve this result in the courts and in Congress have gone nowhere.
In an interview with Trump, even Bill O’Reilly seems to think that that is unlikely to happen and quotes the Wall Street Journal that Trump’s proposal will kill the Republican party.
It was interesting that at the end of the interview, O’Reilly got an assurance from Trump that the interview was fair, presumably so that Trump’s supporters would not attack him the way they attacked Megyn Kelly and the rest of Fox News when Trump accused them of treating him unfairly.
In the current heated immigration debate, the impression has been given that the birthright citizenship provision is being exploited to provide a backdoor for a flood of immigration. The argument is that pregnant women surreptitiously cross the border and deliver babies here in order to have the children become citizens. These ‘anchor babies’, as they are derisively referred to, are then used to gain immigrant status for their families.
It all sounds pretty easy but immigration attorney David Leopold says that this is a myth and that using birthright citizenship to gain legal status is a long and tedious process. First of all, the baby has to grow up to be 21 years old before they can even apply to have their parents or other relatives gain legal status here. And if those people are already here, they have to first leave and be out of the country for another ten years before they can qualify for residency.
The “magnet” to which Trump refers is an arduous 31-year-long slog to legal status for the undocumented parent: 21 years for the child to be able to sponsor the parent and 10 years of banishment from the U.S. because of their previously unlawful presence. Perhaps that’s why Trump and others who oppose birthright citizenship have failed to produce any evidence of hordes of pregnant women streaming across the border illegally (or even legally) to give birth. There’s no evidence that this is a widespread phenomenon—for instance, less than 2 percent of Arizona babies were born to nonresident mothers in 2010.
So what the other Republican candidates saying about ending birthright citizenship? This is an awkward issue for them and Michael Walsh rounds up their reactions. At this time they are pretty evenly split. Trump, Carson, Jindal, Walker, Graham, Santorum, and Paul oppose birthright citizenship. Kasich, Rubio, Fiorina, Bush, Pataki, Gilmore, and Huckabee support it. Christie and Cruz have not made definitive statements either way. People seem to have forgotten about Perry because he does not seem to have been asked.
Jindal is an interesting case and he should be a little careful about opposing birthright citizenship. His mother came here as a student when she was three months pregnant with him. Under the stricter version of “subject to the jurisdiction” favored by those who oppose birthright citizenship, because his parents were Indian citizens, he would not have been considered born subject solely to the jurisdiction of the US and thus he would not be a citizen by birth and hence ineligible to run for president.
Of course, Jindal could argue that the new interpretation should not be applied retroactively but Orly Taitz, that jealous guardian of the presidency, would likely create a whole new birther controversy over him. Also since anti-choice hardliners like him argue that life begins at conception, then since he was conceived in India to Indian parents, wouldn’t that mean he was born Indian and thus disqualify him from the presidency?
Inquiring minds want to know.