On birthright citizenship, Congress can’t ‘Trump’ Constitution

Donald Trump’s call to deny U.S. citizenship to the children of undocumented migrants misleads the public because it takes the wrong approach. Whatever the merits of his proposal to change the rule of birthright citizenship, it cannot be accomplished through legislation by Congress. Such legislation would be a waste of Congress’s valuable time; the U.S. Supreme Court would promptly strike it down as beyond congressional authority. If the rule is to be changed, it must be through the arduous process of amending the federal constitution.

{mosads}Indeed, the platform of the Republican Party during the Reagan and George W. Bush presidencies called for a constitutional amendment to change the rule of birthright citizenship. That platform provision disappeared during George W. Bush’s first presidential campaign, in favor of efforts to accomplish the same thing through Congress.

A few members of Congress agree with Trump that Congress can change our birthright citizenship rules. Legislation to this end was introduced in Congress beginning in 1993, and has been an annual nonstarter ever since. It has never emerged from committee, nor has it even received a committee hearing in the 21st century. Why?

The prevailing understanding is that Congress has no such authority because the language of the 14th Amendment is clear and so are the Supreme Court opinions interpreting it. Any person — regardless of their parents — acquires citizenship at birth so long as he or she is “subject to the jurisdiction” of the United States. Proponents of congressional authority, however, reason that because the parents are in the country illegally, they are not “subject to the jurisdiction” of the United States. It is a tortured reading of the plain language — something originalists accuse “activist judges” of doing — to conclude it doesn’t mean what it says. The parents are most certainly subject to the jurisdiction of the United States when they are inside this country. Public understaanding would reject the alternative: If illegal migrants are not subject to our jurisdiction, we cannot punish them for criminal behavior.

Even if changing the rule of birthright citizenship were in Congress’s power, the results would confound its proponents. As a thought experiment, let’s consider what the Birthright Citizenship Act of 2015 (H.R. 140) would accomplish. The official summary states that the proposed act:

Amends the Immigration and Nationality Act to consider a person born in the United States “subject to the jurisdiction” of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: 

(1) a U.S. citizen or national, 
(2) a lawful permanent resident alien whose residence is in the United States, or 
(3) an alien performing active service in the U.S. Armed Forces.

Unlike Great Britain and Australia, H.R. 140 does not provide a path to legal residency or citizenship for children born to undocumented aliens. A child born of undocumented aliens in Great Britain or Australia, and who continued to reside there, can elect citizenship in that country at the age of majority. This means that potentially large numbers would be born “stateless,” unable to be deported and without the basic human rights U.S. citizens take for granted.

Supporters of the Birthright Citizenship Act claim that no child would be born stateless in the United States. In a report, “The Alleged Costs of Ending Universal Birthright Citizenship,” the Center for Immigration Studies claimed there will be neither the creation of a caste system nor stateless children, for two reasons: (1) the United States will have deported all existing undocumented aliens and prevented others from entering (or overstaying visas), and (2) the nation of the parents’ origin will always take them in as citizens. The first claim is patently ludicrous; the second claim is simply wrong.

Why would America create a potentially large number of persons with no nationality? The short answer is that H.R. 140 does not insure that children born here can, in fact, claim citizenship elsewhere, not to mention the administrative nightmares to sort this out. The impracticalities are too many to detail here, but I have catalogued them in a recently published article. In short, this legislation is a poor idea, even if you support Trump’s ideas on the subject.

It is quite clear that proposals to end birthright citizenship for the children of undocumented migrants are racial measures in their purpose and effect. The end result would be to create multigenerational classes of persons within the United States of vastly unequal rights, a caste of residents unable to become citizens. Any permanent underclass of noncitizens constitutes a moral wrong in a democratic nation.

Price is professor of law at Emory University School of Law.