On Birthright Citizenship

Guest blogger: Jorge Ambriz, Masters in Migration Studies, graduate student, University of San Fancisco

Every now and then, especially around election cycles, news articles and reports circulate with headlines calling for a repeal of birthright citizenship. The most recent came during the 2018 midterm elections, when Donald Trump threatened executive action to end birthright citizenship to children born in the United States to noncitizen parents. Many legal scholars agree that to repeal or rollback birthright citizenship would require a constitutional amendment, and most chalked it up as an attempt to fire up his base during the election cycle. And, if we are to believe in the notion of checks and balances, the legislative and judicial branches of government would (hopefully) have something to say about such overreach. So what is at stake here?

In theory, birthright citizenship is a lottery. Luck of the draw. At least in the United States, the only qualifier for birthright citizenship is determined by which side of an arbitrary line you are born on. Often, those calling for the repeal of birthright citizenship speak of birthright citizenship as an earned privilege rather than a given right. Of course there are huge benefits to having U.S. citizenship; but often those same people calling for the repeal have done nothing to “earn” their own citizenship. There is no “earning it.”

But because we live in a pragmatic world, we must look to court rulings to even begin to get an idea of the jurisprudence of birthright citizenship. In United States v. Wong Kim Ark more than 120 years ago, the Supreme Court took on the very question at hand today: Should the children born in the United States to noncitizen parents be granted U.S. citizenship? The case involved the son of Chinese nationals, who was denied reentry into the United States despite being born in San Francisco. The court focused on the language of the first sentence of the 14th Amendment, which reads “[a]ll persons born…in the United States and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside,” and rightly concluded that every person born in the United States should be extended citizenship. Quite explicitly, the court ruled the citizenship extended to those born in the United States could not be limited by an act of Congress. 

Perhaps the best argument in defense of birthright citizenship I’ve heard was during a panel discussion last November in response to Trump’s rhetoric. On that University of San Francisco panel, alongside Prof. Bill Hing, was Clarence Jones, former counsel to Dr. Martin Luther King Jr. He best summed up the legacy of birthright citizenship by calling the citizenship clause a “monument erected to commemorate the defeat of slavery.” The good news is that this battle is not limited to one of immigration policy. The legacy of the 14th Amendment means so much to so many people, and an attack of birthright citizenship is an attack on the 14th Amendment. An attack to the 14th Amendment is an attack on the gains made since the Civil War.

With respect to the threats to birthright citizenship, we can take solace in knowing that any serious effort to repeal it would take a vast amount of support by virtually all facets of national, state, and local governments as well as a significant amount of public support. And the swift response by many, including former Speaker of the House Paul Ryan, to criticize the president for his comments provides some hope for sane governing. Still, proposals to end birthright citizenship will likely not go away. And come next election, I am sure this topic will again be revisited.

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