How Trump can get the citizenship question rolling

How Trump can get the citizenship question rolling
© Greg Nash

President TrumpDonald TrumpSix big off-year elections you might be missing Twitter suspends GOP Rep. Banks for misgendering trans health official Meghan McCain to Trump: 'Thanks for the publicity' MORE recently revived the debate over whether anyone born on U.S. soil should automatically be classified as a U.S. citizen. He said to a gaggle of reporters outside the White House: “We're looking at that very seriously, birthright citizenship, where you have a baby on our land, you walk over the border, have a baby – congratulations, the baby is now a U.S. citizen. ... It's frankly ridiculous.”

The president has raised the issue before, notably last fall, when he said the administration was considering an end to birthright citizenship via executive order.

Our current practice is that anyone born here – even to illegal aliens or tourists or foreign students or guest workers – is a citizen. More than 200,000 such children are born here every year. They enjoy what one book calls “Citizenship Without Consent.”


No law or Supreme Court ruling requires this. Instead, the practice stems from an interpretation of the 14th Amendment. The relevant part of that amendment 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 point of the post-Civil War amendment was to prevent the former Confederate states from stripping the citizenship of the newly freed slaves.

This seems straightforward, but is not. The slavery issue is gone, but new issues have arisen. Specifically, what does “subject to the jurisdiction” actually mean? Some argue that it includes everyone other than foreign diplomats, including children born to tourists and illegal aliens. Others claim that only those permanently living here and part of the polity are covered, since the framers of the amendment, adopted in 1868, could never have imagined either mass illegal immigration or airborne tourism.

Here's where the president has an opportunity. He cannot issue an executive order declaring an end to birthright citizenship and decree that only children born to citizens and permanent residents (green card holders) are henceforth to be considered U.S. citizens — that's simply not in power of the chief executive. But he does have the authority to interpret an ambiguous phrase in the Constitution whose meaning has not been clarified by the Supreme Court.

The way that could work would be to instruct the Department of State and the Social Security Administration not to issue passports or Social Security numbers to babies born after a certain date in the future unless at least one parent is a citizen or green-card-holder.

A lawsuit, perhaps from one of the thousands of Russian and Chinese “birth tourists,” would be filed, a judge would be found to issue an injunction, and the case would ultimately have to be decided by the Supreme Court. This would also happen if Congress were to pass legislation laying out the parameters of citizenship, but since Congress can't even pass a budget, that's not going to happen.

Once before the Supreme Court, it's not obvious what the result would be. You can be pretty sure all four Democratic justices would rule against the president, meaning only one of the Republican justices would need to join them. But whichever way the Court ruled, the issue would be settled (until the losing side managed to garner enough support for a constitutional amendment). As law professor Jonathan Turley wrote when the president raised the subject of a birthright citizenship executive order last fall, “the benefit of the order is that it could finally force the courts to resolve this question with clarity and finality.”

But what should our citizenship policy be? It's obviously absurd for a Russian tourist to be able to fly to Miami, give birth, collect her baby's passport and then go home with a newly minted American citizen; that child will not grow up in any sense as an American, and yet will, among other things, be able to order up green cards for his parents once he turns 21.

But simply abolishing automatic citizenship at birth would yield the equally absurd result of U.S.-born adult illegal aliens, born here to illegal-alien parents. Birthright citizenship (which has been abolished by all developed countries other than the U.S. and Canada) has the advantage of ensuring that immigration mistakes disappear after a generation, unlike in some countries, where the grandchildren of earlier migrants are still not citizens.

The obvious compromise: Confer citizenship at birth only to babies born to citizens or green-card holders, but with a kind of statute of limitations, awarding citizenship to others if they manage to stay here for a number of years. Australia had a policy like ours until 1986, when it ended birthright citizenship, with the exception that a child born to illegal aliens or tourists would get citizenship if he lived the entire first 10 years of his life in Australia. Similarly, law professor Peter Schuck has suggested that such children be award citizenship upon completion of the eighth grade.

Our current policy is ridiculous but can only change if someone starts the ball rolling. President Trump has it in his power to do that.

Mark Krikorian is executive director of the Center for Immigration Studies. Follow him on Twitter @MarkSKrikorian.