In a disorienting blizzard of executive orders over his first 48 hours in office, President Donald Trump pulled the United States out of the Paris climate accord and the World Health Organization and hammered away at familiar targets related to immigration policy. The administration suspended the CBP-One mobile app migrants had been using to schedule asylum hearings and reinstated the “Remain in Mexico” program, though that plan’s practical restoration relies on the president’s already problematic relationship with Mexican President Claudia Sheinbaum—Gulf of America indeed!
One of Mr. Trump’s most dramatic moves during this week’s shock-and-executive-awe campaign had been telegraphed by surrogates long before the election: The incoming administration appears determined to end the tradition of birthright citizenship in the United States.
Deriding the idea that place of birth alone should be sufficient to secure citizenship, the president claimed that the United States was “the only country in the world that does this with the birthright…and it’s just absolutely ridiculous.”
In fact, unrestricted birthplace citizenship is accepted by 33 countries, including U.S. neighbors Mexico and Canada, and 42 other nations maintain restricted versions of birthright citizenship according to varying residency and parental status stipulations. Most of the nations that accept unrestricted birthright citizenship can be found in North and South America—New World nations, like the United States, that have historically relied on immigrant population boosts.
Kevin Appleby, a senior fellow for policy and communications for the Center for Migration Studies in New York, deplores the plan to move backward in time on citizenship. “I think birthright citizenship has served us well over the centuries,” he says. “It puts everyone on an equal footing. It gives every child a chance to reach their full potential…. It makes us a stronger nation because we all have the same opportunities and the same benefits from an early age and the same responsibilities as well.”
Pedro Aleman, a policy advocate for CLINIC, the Catholic Legal Immigration Network, Inc., argues that “eliminating birthright citizenship will definitely diminish and separate families. It undermines the U.S. Constitution and the promise of equal protection.” It represents “a drastic reduction of so many rights across the country and for individuals that haven’t even been born.”
A permanent underclass?
Critics charge that the president is attempting to circumvent the cumbersome process of amending the Constitution. His executive order in fact was immediately challenged on constitutional grounds by scores of attorneys general and civil society groups around the country. On Jan. 23, a federal judge in Seattle temporarily blocked Mr. Trump’s executive order, calling it “blatantly unconstitutional” during the first hearing in a multi-state effort challenging the order.
Mr. Aleman foresees innumerable complications emerging from the president’s proposal, including new barriers to public education, health services, travel documents and other social and civic services and legal protections citizens can take for granted. He worries about the emergence of new forms of family separation for immigrant families who may have older children “grandfathered” into citizenship while other children will be denied.
He adds that the administration’s attempted rewiring of the 14th Amendment threatens to create “a permanent underclass of stateless individuals.” Those residents would likely feel little obligation to “integrate” with the broader U.S. society, he warns, perhaps beginning generational cycles of isolation and resentment.
An analysis conducted by the Migration Policy Institute reports that far from diminishing the population of undocumented residents, the president’s plan to end birthright citizenship would likely more than double their number—from 11 million now to more than 24 million by 2050.
In other nations, terrible injustices and exploitation have been visited on people who are residents but non-citizens. For the most part, statelessness has been a phenomenon associated with conflict zones or failing states. How is it possible that an advanced economy and mature democracy is on the verge of manufacturing a homegrown statelessness crisis?
The amendment the president hopes to reinterpret came into effect after the Civil War as an attempt to redress the Dred Scott decision in 1857. That infamous Supreme Court ruling had declared that any free Black American descended from slaves was “not a ‘citizen’ within the meaning of the Constitution of the United States.” The ruling had essentially made it impossible for Black residents of the United States and their descendants to become citizens and to enjoy the rights and protections that accompany citizenship.
The 14th Amendment was backstopped in 1898 by another Supreme Court ruling, United States v. Wong Kim Ark, which confirmed the precedent that any person born in the United States is a citizen by birth regardless of race or parents’ status. The nature of U.S. citizenship, though periodically challenged, had appeared by the turn of the 20th century to be settled law.
The language of the 14th Amendment, conferring citizenship on all persons “born or naturalized in the United States, and subject to the jurisdiction thereof,” would seem reasonably straightforward, but in a nation capable of a lengthy debate on what the meaning of is “is,” the intent of the amendment’s and has come under sharp focus.
Advocates for deconstructing birthright citizenship claim that and means new Americans have to be both born within the borders of the United States and subject to its jurisdiction for citizenship to be automatic. Are children born to parents who are unofficially resident in the United States “subject to its jurisdiction”?
Around the world, citizenship is based either on terrestrial birthplace, jus soli, the “right of the soil”—or on ancestry, jus sanguinis, the “right of blood.” The jus soli tradition of citizenship applied in the United States is rooted in natural and British common law. In a nation like the United States, composed of people from all ethnicities and nationalities, the notion of building citizenship on blood and ancestry would appear to be a non-starter.
Demographic anxiety
But since its earliest days, the United States has tinkered with citizenship and nationality, most often in deference to promoting a white and Protestant America. Contemporary Catholics may wish to keep in mind that the earliest efforts to codify citizenship in colonial America were designed to limit citizenship to newly arriving Protestants. In 1790, the Naturalization Act allowed “any free white person” of good character who resided “within the limits and under the jurisdiction of the United States for at least two years” to be granted citizenship after swearing allegiance not to the flag or the state but to the Constitution.
Immigration interventions of the 19th and 20th centuries, like the Chinese Exclusion Act of 1882 and quota systems enforced through the National Origins Formula in 1924, likewise sought to maintain preferences for immigration from Western and Northern Europe. By the 1950s, those policies were being scrutinized, and by 1965 an immigration reform law attempted to address historical imbalances, opening up immigrant pathways from Asian and Latin American states.
Decades later, with white hegemony demographically precarious and with historically high rates of foreign-born U.S. residents, it could be that the white anxiety that propelled previous immigration policy may be at least partly propelling this renewed focus on citizenship. Rhetoric over “anchor babies” allegedly used by contemporary immigrant groups to get an infant foothold in the United States has long powered conservative campaigns seeking to reduce immigration flows.
“There are a lot of implications to what [Mr. Trump is] doing,” Mr. Appleby says. “In some ways, it’s got racial undertones. There are immigrants from all over the world—different ethnicities, different races, different nationalities—and [ending birthright citizenship] is sort of a way to keep America white.”
He shares Mr. Aleman’s worries about the potential emergence of a permanent underclass in the United States should the 14th Amendment be neutralized.
There are already some 200,000 stateless people resident in the United States, but such unfortunate and vulnerable populations, people bereft of citizenship in the nations where they were born and lacking documentation that connects them to the nations of their parents’ births, can be found all over the world. “The Dred Scott decision was an attempt to create a permanent underclass,” Mr. Appleby says. “We’re not dealing with abstractions here. We were on the verge of doing just that before the 14th Amendment.
“Not to tie everything to the Civil War, but if the South had had its way, it would have certainly maintained slavery, but also this permanent underclass of people based on race.”
He described that potential outcome as “an affront to human dignity because it diminishes a class of person. It doesn’t provide them with a full share in society based on their human worth” and “sets up different parameters by which to judge people, which leads to discrimination.”
Mr. Appleby does not believe the president’s executive order has a chance of surviving its constitutional challenges. The gesture, he believes is “a public relations exercise. He’s sending a dog whistle to his supporters that, you know, ‘I’m going to weed out all these immigrants that are having children for future generations.’
“It’s a cruel policy because if it were adopted, it would impact children mostly. It would impact future generations, and, as is consistent with his theme, it divides people. It would divide our country even further.”
Should the order prove enforceable, Mr. Aleman warns that the descendants of today’s immigrants, “many of whom would not be able to recall their ancestors’ history or feel connected [to their ancestral home countries], would find themselves living in the margins of U.S. society, unable to be recognized and valued.”
“This is the ultimate price our society would pay, millions of our future citizens—potential teachers, doctors, soldiers, clergy members, entrepreneurs, astronauts, firefighters, store clerks, scientists, reporters, and yes, even potentially the next U.S. president—being thwarted by the hand of one person who will not be here to see all of that occur.
“We are playing a game of dice with our country’s future if this executive order is enacted,” Mr. Aleman concludes.
A decades-long failure by Congress to reform and modernize immigration policy to conform to contemporary needs and realities has led to this fraught and angry moment, according to Mr. Aleman. Returning to dialogue on comprehensive reform would make for a better use of the president’s time than this leap into a new mire over birthright citizenship. The country is on the verge of a historic Social Security crisis, he points out, with fewer young working people supporting higher percentages of retirees. That problem will only be exacerbated by a clampdown on immigration and the many unforeseen complications likely to emerge from a rewriting of the citizenship covenant.
The Weekly Dispatch takes a deep dive into breaking events and issues of significance around our world and our nation today, providing the background readers need to make better sense of the headlines speeding past us each week. For more news and analysis from around the world, visit Dispatches.
From America
- US bishops’ president calls Trump orders on migration, death penalty ‘deeply troubling’
- A Catholic guide to migration ethics in the Trump era
- As foreign born numbers spike in Europe and America, xenophobia goes global
- Birthright citizenship is essential to our ideal of equality before the law
