Repealing birthright citizenship is a really dumb idea

Republican presidential candidate Donald Trump likes to say that America’s problem is “stupid” leaders.  But, he just proposed one really dumb idea – ending “birthright citizenship” by which American citizenship is based on place of birth.   The repeal of “birthright citizenship” would likely redefine what it means to be an American in a way starkly inconsistent with our values and history. 

One of the most breathtakingly simple provisions of the Constitution is the Citizenship Clause of the 14^th Amendment, which states that “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.”  It’s one of the few provisions of the Constitution that you can easily explain to a first grader:  If you are born in the United States, you are an American citizen.    It doesn’t matter whether your ancestors came on the Mayflower, whether your grandparents from Minsk entered the United States through Ellis Island, or whether your parents were Vietnamese refugees.  

{mosads}Simple, yes, but our nation was torn apart and 600,000 soldiers died in the Civil War, so that those words could appear in the Constitution.   Its sometimes called the “Dred Scott Clause” because it overruled the infamous 1857 Dred Scott case, in which the Supreme Court held that persons of African descent, even those born in free states to free black parents, could never be American citizens.   The Court also held that Congress could not interfere with the “property” rights of slave owners in their slaves, in effect, nationalizing slavery.  Dred Scott paved the way for our great catastrophe, the Civil War, which led to the post-war 14^th Amendment and its better known Equal Protection Clause that guarantees equality before the law.  But the Citizenship Clause is the first sentence of the 14^th Amendment, thus emphasizing that henceforth American citizenship would not be determined by skin color, or any other characteristic such as ethnicity or religion, but only by whether a person was born in the United States.  

Tampering with this bright-line rule would likely require a constitutional amendment, although Republican Sen. David Vitter (R-La.) recently tried without success to end birthright citizenship through an amendment to the Justice for Victims Trafficking Act.   But either way, ending birthright citizenship would create a very un-American caste system.   According to the Pew Hispanic Center, about 300,000 children, the vast majority from Latin America, are born annually in the United States to at least one undocumented parent.   Thus, under Trump’s proposal hundreds of thousands of babies born each year in the United States in hospital beds next to babies of citizen-parents would be stamped at birth with an inferior citizenship-disabled status.  

Birthright citizenship has no administrative costs because state-issued birth certificates establish place of birth.  A 2012 study by the non-partisan National Foundation for American Policy pointed out that creating a citizen-disabled class, however, would require an expensive bureaucracy because birth certificates would be insufficient to establish whether a baby was or was not an American citizen.  A new federal citizenship registry would be required to validate whether the baby’s parents were legally in the United States at the time of birth, which could cost about $600 per birth.  The registry could require a new “birth” tax to fund its operations and spawn a flood of litigation from disputes over the parents’ status.   

Eliminating a bright line rule that has served us well would do little to deter illegal immigration to the United States, despite Trump’s absurd claim that birthright citizenship is the “biggest magnet” for illegal immigration.  As the Udall Center for Studies in Public Policy at the University of Arizona has explained, “most immigrants who come to the United States illegally – especially those from less well-developed nations — do so because U.S. employers hire them at wages substantially higher than they can earn in their native countries.”  Compared to the overwhelming economic incentives, the 14^th Amendment plays a minor role in motivating illegal immigration.  A birthright baby can’t sponsor his or her parents for lawful immigration status until he or she is 21 years old and even then, under immigration law, the parents must leave the United States to apply for citizenship and cannot return for 10 years.   Indeed, another Republican presidential candidate, Florida Sen. Marco Rubio (R-Fla.), himself a birthright baby as the son of Cuban exiles, opposes repeal of birthright citizenship and instead advocates finding other ways to discourage anyone from illegally entering the United States for “purposes of taking advantage of the 14^th Amendment.”    

Having a class of American-born, but citizenship-disabled, persons in the United States once cost us dearly.   We don’t want to go anywhere near that again.  

Wallance is an attorney and writer in New York City  and author of the historical fiction “Two Men Before the Storm: Arba Crane’s Recollection of Dred Scott and the Supreme Court Case That Started the Civil War.”