Defend Birthright Citizenship From Right-Wing Attacks

What is Birthright Citizenship and Where Does It Come From?

Birthright citizenship, known by the legal term “jus soli,” is the idea that you are a citizen of the country where you are physically located when you are born. In the U.S., birthright citizenship comes from the 14th Amendment to the U.S. Constitution, which states, “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.”

The 14th Amendment is applied today to give most people born physically in the U.S. citizenship, with a few notable exceptions. The main exception is children of foreign diplomats who are born in the U.S. while their parents are on diplomatic missions. The other notable exception was Native Americans, but this has subsequently been addressed through congressional legislation granting U.S. citizenship to all Native Americans.

The key point to understand is that our modern interpretation of the 14th Amendment means that a child who is born physically in the U.S. is a U.S. citizen, even if their parents do not possess lawful immigration status. This is the concept that conservatives like Trump and DeSantis are seeking to do away with as part of their never-ending quest to target the immigrant population.

What Is the Conservative Argument Against Birthright Citizenship?

Conservatives have two main arguments that they like to make when attacking birthright citizenship. The first argument is a legal one. They claim that the 14th Amendment does not really apply to children of undocumented immigrants. This argument seems absurd because the text of the 14th Amendment is very clear, but their argument rests on the phrase “subject to the jurisdiction thereof.”

The 14th Amendment basically has two requirements for U.S. citizenship: 1) being born inside the U.S.; and 2) being “subject to the jurisdiction thereof.” Conservatives argue that because the parents do not have lawful immigration status, they are not “subject to the jurisdiction” of the U.S., nor are their children. Therefore, the children born to people without lawful immigration status are not U.S. citizens, according to conservatives.

This argument does not make any sense because anyone who is in the U.S. is subject to the laws of the U.S., i.e., they are subject to the jurisdiction of the U.S. Again, the exception to this is people with diplomatic immunity, which is why the children of diplomats are not covered by the 14th Amendment. This question was very soundly answered inUnited States v. Wong Kim Ark, where the court reaffirmed that a child born to Chinese parents in the U.S. is a U.S. citizen, regardless of whether the parents were eligible to gain U.S. citizenship themselves.

The idea that coming to the U.S. without status and having a child here is some kind of magic ticket to a green card is simply false.

Conservative lawyer and criminal defendant in the State of Georgia, John Eastman, frequently advocates against birthright citizenship. He argues that Wong Kim Ark does not grant citizenship to children of undocumented immigrants because Wong Kim Ark’s parents were residents who were domiciled in the U.S., and that they were therefore like lawful permanent residents (green card holders). In the piece I cited above, Linda Chavez shoots this down because the modern concept of “lawful permanent resident” did not exist when this case was settled at the end of the 19th century, and the logic of the case is clear that citizenship is granted to anyone regardless of their parents’ immigration status, unless they are children of foreign diplomats.

Eastman’s legal argument is very weak, and not many people share his view. Also, I would take anything he says with a grain of salt because his legal advice is likely going to land him in jail in Georgia. If you have time, I recommend reading Wong Kim Ark so that you can see for yourself that the ruling in the case covers all children regardless of the immigration status of their parents.

The other argument that conservatives like to make is a policy argument that birthright citizenship encourages illegal immigration. This argument is flawed for a few reasons. First, as I have written about previously, the main source of illegal immigration is right-wing U.S. policy that pushes people out of their home countries, and right-wing immigration policy that denies people a practical, safe, and legal way to come to the U.S. Second, having a U.S. citizen child does not mean that someone without legal status can automatically get a green card and stay in the U.S. forever. They would have to wait until their child turns 21 before the child can petition for a green card for their parent. Further, if the parent crossed the border illegally, they would not be able to obtain a green card in the U.S. without first getting a waiver approved, which is very difficult, and then leaving the U.S. The idea that coming to the U.S. without status and having a child here is some kind of magic ticket to a green card is simply false.

A Conservative Government Attacking Birthright Citizenship Would Be a Nightmare

To me, the most compelling reason to advocate for birthright citizenship is that it takes the question of who is a citizen out of the hands of politicians, specifically, Republican politicians who will try to weaponize it. Just as they manipulate the levers of government to disenfranchise people from voting through gerrymandering, voter ID requirements, and disenfranchising felons, if a Republican government had the power to challenge people’s citizenship, they would do it, and it would be awful.

Let’s imagine for a second the nightmare dystopia that would result from a Republican attack on birthright citizenship. It would start with a Republican president directing ICE to arrest and detain anyone born in the U.S. whose parents are undocumented. It would almost certainly be targeted at the Latino and Caribbean communities. People detained by ICE are sent to ICE detention facilities, which are notorious for their inhumane conditions, and then placed in removal proceedings, which is the legal term for an immigration court trial in which the government seeks to deport someone. The government would argue that the people being detained are not citizens because their parents lacked lawful status. Thus, those people born in the U.S. have no lawful status and are removable (deportable).

People in immigration court do not have the right to an attorney because immigration proceedings are not considered criminal matters. Further, people in ICE detention do not have a right to be released on bond while they are awaiting their hearings. Many people face mandatory detention where they have no right to even request a bond for release. If they are eligible for a bond hearing, the immigration judge has discretion on whether to approve it or not.

An aggressive, proto-fascist government could immediately begin detaining anyone whose parents, grandparents, or ancestors even further back, cannot be shown to have had lawful immigration status.

What we saw during the Trump years was an immigration court system heavily controlled by then Attorney General Jeff Sessions that constantly pushed the Trump administration’s agenda into immigration court rulings. We also saw a right-wing packed federal judiciary regularly rule to keep Trump’s policies in place until the end of the trial. There is no reason to think that it would play out any differently if we had a second Trump administration. Before the courts make a final ruling, an aggressive government could detain untold numbers of people, unless a judge placed an injunction on the practice.

The cases for these hypothetical people who were born in the U.S. but whose citizenship is being challenged would almost certainly make their way to the Supreme Court. Once the cases get to the Supreme Court, it would be up to the ultra-right 6-3 majority to decide if they want to upend over 100 years of legal precedent to deny citizenship to people born in the U.S. If they ruled in favor of the government, it would be a disaster. An aggressive, proto-fascist government could immediately begin detaining anyone whose parents, grandparents, or ancestors even further back, cannot be shown to have had lawful immigration status. A Republican administration would weaponize this against the Latino community and try to deport people who are rightfully U.S. citizens and have lived here all of their lives. They would almost certainly target people in swing states in order to try and sway presidential elections in their favor, just like they do with gerrymandering and voter purges.

If the Supreme Court struck down birthright citizenship for children of undocumented immigrants in the 14th Amendment, it would be up to Congress to pass a law to restore that right. I am sure that whatever citizenship law they pass would be worse than what we have now: The only question is, “How much worse would it be?” Needless to say, this would be a nightmare. People would be locked up in ICE detention, they’d lose their right to vote, and the door would be wide open for a whole host of abuses. It would be the end of the America that we have known for our whole lives.

Birthright Citizenship Is Good for America

Although I think the nightmare scenario I outlined above is the most immediately compelling reason to keep our current interpretation of the 14th Amendment in place, I also want to highlight some of the positive benefits that it brings. First, having more citizens raises the gross domestic product and the standard of living for all. Second, having more foreign born citizens expands U.S. soft power and gives us immeasurable cultural and linguistic connections with the rest of the world. Third, it helps prevent people from becoming stateless, which is a humanitarian catastrophe that no one should have to face. Fourth, it expands the U.S. tax base and helps attract more talent from around the world.

As I mentioned before, there isn’t really a good argument against having more citizens. The only policy argument I hear is that it encourages illegal immigration, which I have discussed above. This leads me to conclude that those pushing against birthright citizenship are motivated by other factors, most likely based on political calculations about how they think children of immigrants will vote, or based on racism.