Immigration Article of the Day: Caught Between Sovereigns: Federal Agencies, States, and Birthright Citizens by Angela Remus

Caught Between Sovereigns: Federal Agencies, States, and Birthright Citizens by Angela Remus, 34 Stanford L. & Pol’y Rev. __ (2023)

Abstract

The Fourteenth Amendment enshrines a commitment to birthright citizenship that extends to almost anyone born in the United States. While the federal government is the arbiter of questions of citizenship, the states are indispensable partners: State-issued birth certificates have long been the preeminent form of proof of birthright citizenship. However, federal agencies’ treatment of delayed birth certificates—which are usually held by individuals marginalized by race, class, and geography—depart from the usual acceptance of states’ determinations of birth facts. Delayed birth certificates, including those issued pursuant to state court orders grounded in judicial factfinding, are regularly rejected by federal agencies like the Department of State and Social Security Administration. This Article explores the relationship between state judiciaries and federal agencies with respect to the recognition of birthright citizenship, using the theoretical framing offered by theories of cooperative federalism and immigration federalism. It argues that when state and federal governments reach different conclusions about a person’s entitlement to birthright citizenship, they create an untenable conflict between sovereigns that leaves unknown numbers of de jure U.S. citizens experiencing the de facto denial of citizenship. The Article concludes with recommendations for mitigating this problematic state of affairs.

KJ