Just a week before the midterm elections on Nov. 6, President Trump wildly declared that he would be taking steps to end birthright citizenship in the United States. While the statement appears to be nothing more than a standard Trump lie and was nothing more than an eleventh hour attempt at motivating his political base for the midterm elections, Trump’s flippant attitude towards one of this country’s constitutional cornerstones poses no shortage of troubling questions about the future of the country and its very values.
The midterm elections are over, but the popularity of Trump’s promise to end birthright citizenship reveals just how much is fundamentally broken with the our immigration laws. The absolute absurdity of this somehow popular proposal, however, also represents just how unlikely this country is to see any kind of progress on this frighteningly divisive debate. By making such an inflammatory and idiotic claim and exploiting it as a political club, the president has undeniably made the possibility of reaching desperately needed immigration reform even less likely or possible than before.
During an interview with the news site Axios on Oct. 30, Trump said that he had discussed the prospect of ending birthright citizenship nationwide with his legal advisers, and was told that he “can just do it with an executive order.” In addition to resting on this almost certainly false claim, Trump then added in another lie for good measure, saying, “we’re the only country in the world” that has birthright citizenship. Given that we have not heard from the president on this matter since, and this was clearly a bait-and-switch pre-midterm tactic, we feel very safe calling this crazy assertion a flat-out lie.
Firstly, however, it is important to dissect the concept of birthright citizenship itself, and by extension, the Fourteenth Amendment. The specific clause in question is the very first clause of the amendment that underpins every basic understanding of American citizenship law today. The clause reads, “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 amendment makes its fairly clear that anyone born in the United States and subject to the jurisdiction of the United States is to be considered a United States citizen. Based off of this premise alone, the Constitution of the United States very clearly spells out that birthright citizenship is a constitutional right, and thus can only be taken away through constitutional amendment. For any member of the government or law enforcement to act or proceed otherwise would be unconstitutional, and derelict of their duty.
A few fringe legal theories, however, find some footing in the ambiguity of the phrase, “and subject to the jurisdiction thereof.” According to these theories, just being born in the United States does not mean one is subject to the jurisdiction of the United States. Children of diplomats residing in the United States are an example of such cases; their children are not automatically granted birthright citizenship. Proponents of this school of thought purport that Congress has the power to pass legislation to clarify or even establish what qualifies for individuals to “be subject to the jurisdiction” of the United States, since Congress is the body that creates such laws in the first place. In doing so, subgroups such as children of noncitizens or children of undocumented immigrants could easily be categorized as not “subject to the jurisdiction thereof,” denying them citizenship by birthright.
These aspirations are largely flattened however, by an 1890 Supreme Court decision known as United States vs. Wong Kim Ark, which set clear precedent demonstrating that children born within the borders of the United States are citizens of the United States by virtue of their birth within the country. Proponents of the above belief would argue, of course, that this court decision was decided wrongly, but the decision nevertheless makes it crystal clear that any attempts to alter the process of birthright citizenship in this country would require either a constitutional amendment, or an overturning of this precedent by another supreme court decision.
Birthright citizenship is clearly here to stay, and that’s a good thing, it is a cornerstone of the American promise, and an important bulwark in our commitment against old world values of inheritance and hereditary privilege. Under inclusive and equal citizenship by birthright, the American project of life, liberty and the pursuit of happiness has remained impressively durable in spite of repeated challenges.
In comparison to the other workings of our immigration system, however, birthright citizenship is fundamentally unfair by comparison. It is incredibly difficult, or at the very least time-consuming and costly to become a naturalized U.S. citizen. The U.S. naturalization process favors and highly values higher levels of education, and as a result naturalized U.S. citizens are more likely than native born citizens to hold a bachelor’s degree. Additionally, many prospective naturalization candidates often have to wait years essentially in limbo and pay costs as high as $15,000 just to get their green cards, a necessary prerequisite of naturalization.
While about 900,000 individuals currently legally immigrate to the United States every year, only 140,000 are given the security of their status by being granted permanent residence each year. At the same time as individuals are waiting to be naturalized and go through the incredibly costly and difficult process of trying to at least get their green cards, millions of individuals live within the United States that fundamentally did not follow the same rules these immigrants are following. To make it even more unfair to these individuals and families attempting to gain permanent residence, many families that did not enter the country legally can gain a degree of stability for themselves or at least their children when they are born within the United States.
This possibility is a reality with significant consequences, and while it isn’t quite moral, logical or economical to deport these families, the truth of this situation is fundamentally unfair to individuals and families trying to do things “the right way.” This disparity doesn’t speak to the criminality or exploitative nature of illegal immigrants, but rather speaks to the fundamental flaws in how America handles its system of immigration, particularly how we fail to reward immigrants for the most important American values of hard work, patriotism and civic virtues.
In many ways, hoping to get through the legal immigration system in this country is largely due to luck, or a willingness to just wait it out and pay whatever is necessary until the day finally comes. While sorting for this grit and commitment to America is a good instinct, it selects for it in the wrong ways, keeps too many individuals in limbo and even encourages illegal immigration in many cases. The way in which this contrasts to illegal immigrants, however, is even worse. Rather than allowing those who have entered the country illegally to demonstrate their value, show their commitment to American ideals and contribute to the economy, illegal immigrants are still kept in perpetual second-class status, with their very status in the country insecure.
Most Americans agree that the United States desperately needs immigration reform that rewards immigrants who demonstrate and appreciate American values. A Fox News poll found that 83 percent of Americans support a pathway to citizenship for illegal immigrants, yet if anyone brought such a bill to Congress, it would be dead on arrival. Americans on both sides of aisle believe in a fair pathway to citizenship for immigrants, yet no action is being taken – no wonder there is so much anger at our country’s current immigration system.
Even as the situation looks ripe for a fundamental change by a powerful movement, it appears any hope of such a moment has been pushed inevitably further back with the president doing nothing but continuing to dangerously fan the flames of an already raging inferno. As long as Trump is in office, and other politicians continue to utilize the same race-baiting demonizing tactics, it seems only certain that desperately needed immigration reform is more elusive than ever.