Birthright Citizenship

On the first day of his second term in office, President Trump signed an executive order putting an end to birthright citizenship. What is Birthright Citizenship? How will this executive order change anything? Does President Trump have power to execute this executive order? Today’s blog tackles some of these important questions.

Birthright Citizenship comes from the 14^th Amendment

The 14^th Amendment of the United State Constitution, ratified in 1868, was passed in the wake of the Civil War to provide equality to all citizens. The first sentence of the 14^th Amendment provides, “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 clause was written to ensure that states were not able to discriminate against former slaves and say that although they had received national citizenship, they did not have state citizenship. It also clarified that national citizenship and state citizenship automatically attach at birth without any other preconditions. States (and the Federal government, for that matter) may not restrict citizenship to rich people or those born in a certain race or in other ways like that. If you’re born to American parents, or if you’re born on American soil “and subject to the jurisdiction” of the United States, you’re a citizen.

The key phrase that is causing debate today is the phrase “and subject to the jurisdiction thereof.” Does this include someone who is in the country illegally? Can someone break the law, come to the United States and still be a citizen?

The Supreme Court has given a tentative answer to this question in a case called United State v Wong, Kim Ark, 169 U.S. 649 (1898). In that case, the Supreme Court ruled that a son of Chinese citizens who lived in the United States at the time of his birth, nonetheless gained his citizenship upon being born in the United States. They did, however, provide several exceptions and did not address the question about whether an individual born to parents who were in the United States surreptitiously or illegally would be citizens.

Until now, Birthright Citizenship has largely been assumed.

From Wong, Kim Ark until the present the Federal Government has generally assumed that those born in the United States are citizens regardless of how they came. This includes people whose family were here on a trip and also includes situations in which someone came illegally and had a child while here. These children were assumed to have citizenship, and no one has challenged that legally until now.

President Trump’s executive order makes clear at least that the Federal government will not recognize such citizenship; however, legal challenges are certainly expected.

This does NOT affect anyone who already has citizenship

An important note here is that under long established case law, the Federal government cannot generally revoke the citizenship of those who have already been granted it. Those who have citizenship because they were born here under prior precedent cannot lose their citizenship because of this change in the law. However, it does potentially affect individuals who intend to claim citizenship in the future on the basis of these rules.

Lawsuits are expected.

There will be lawsuits seeking to enjoin the Federal government’s enforcement of this action. As with all such cases, the first step will be seeing how this law is enforced and thus who will have “standing” to bring an action to challenge the statute. However, a number of groups have already promised to support anyone with such standing and to bring test cases that will ultimately find their way to the Supreme Court of the United States.

A district court has already “enjoined” the rule, saying that the President lacks power to restrict how the Constitution’s guarantees are interpreted. The Supreme Court will likely refine its holding in the case previously mentioned, Wong, Kim Ark, and provide new guidance on any changes that are relevant based on individuals who are not in the United States legally when they have children.

It is probably up to Congress rather than the President to provide revisions.

Refining our understanding of something as important as the doctrine of Birthright Citizenship is probably an action required of Congress and may even require a Constitutional amendment. It remains to be seen if the President will be able to put any bill through Congress which will further bolster his argument in regard to Birthright Citizenship.

Conclusion

At Cornerstone Law Firm, we are helping clients who are facing immigration questions and challenges. If you have questions today about your citizenship status or about how to immigrate, contact our firm so that we can set-up a consultation and talk with you about your options.