Special Posting: Birthright Citizenship

       This is a special unplanned posting. Suddenly, the issue of birthright citizenship has been thrust into the national spotlight and the media (surprise) have it all wrong. We first wrote about this seven years ago. What follows is not political or partisan, but simply a logical, fact-based and principled assessment of birthright citizenship.

       You likely have heard that children of illegal aliens, born within the USA, ipso facto are US citizens and that is explicitly ordained by the Constitution. Neither proposition is true! The 1789 Constitution did not define citizenship; however, the 14th Amendment ratified in 1868 states, “all persons born in the US and subject to its jurisdiction” are citizens. The purpose was to grant citizenship to former slaves in the aftermath of the civil war. Being born in the USA is only one of two conditions.

       Those five words, and subject to its jurisdiction, is where all the controversy lies. At the time (1868) it was generally understood to mean full political allegiance. That’s why Indians were excluded – because it was assumed they owed allegiance to their tribes. However,  Section 5 of the 14th Amendment gives Congress power to “enforce by appropriate legislation” provisions of the amendment. Congress subsequently has done so, giving Indians and other explicit categories citizenship. But Congress never has given citizenship to children of illegal aliens or to everyone born in the USA.

      There have been Supreme Court cases on topic. Proponents always cite U.S. v. Wong Kim Ark (1898) (decided 5-4) as a source of birthright citizenship. However, in that case, the court held only that children of legal permanent residents automatically were entitled to citizenship. The court never has opined on children of illegal aliens.

Four Takeaways About Birthright Citizenship

1. A constitutional amendment is not required to address birthright citizenship. Congress has this power under Section 5 of the 14th Amendment and could pass a law either granting or denying citizenship to children of illegal aliens born in the USA.

2. There is nothing in the Constitution, laws passed by Congress or cases decided in the Supreme Court that grant birthright citizenship to children of illegal aliens.

3. Because of the lack of legislative or judicial clarity directly on point, an executive order by the President of the US is entirely appropriate. Such an order could instruct the executive branch how to deal with children of illegal aliens – including instructing them not to confer birthright citizenship unless mandated by Congress or the courts.

4. Ultimately, this matter will wind up in the Supreme Court – whether as a result of an executive order or a law enacted by Congress and signed by the President.

      No European or western country grants citizenship based on place of birth. Nearly every country on earth bases citizenship on blood rather than on soil, i.e  on parental citizenship – not on place of birth. Ideally, Congress should settle this question as one part of comprehensive immigration reform legislation. Good luck with that!