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Andrew R. Arthur is a resident fellow in law and policy at the Center for Immigration Studies.

Summary

• The issue of birthright citizenship, as it pertains to children born in the United States to aliens unlawfully present, remains an open question. Although this fact would appear to be resolved in the public imagination, it has not actually been ruled upon dispositively by the Supreme Court. President Trump’s assertion that he would end birthright citizenship by an as-yet-unpublished executive order has brought this issue into focus. Should he issue such an executive order, it would provide the Supreme Court the opportunity to resolve the issue once and for all.
• Citizenship is currently offered to all children who are born in 39 countries (with the exception of children of diplomats), most of which are in the Western Hemisphere. No country in Western Europe offers birthright citizenship without exceptions to all children born within their borders.¹
• Many countries, including France, New Zealand, and Australia, have abandoned birthright citizenship in the past few decades.² Ireland was the last country in the European Union to follow the practice, abolishing birthright citizenship in 2005.³
• The costs of births for the children of illegal aliens is staggering. The Center for Immigration Studies (CIS) estimates that in 2014, $2.35 billion in taxpayer funding went to pay for more than 273,000 births to illegal immigrants.⁴

Introduction

President Trump’s recent pronouncement that he plans to sign an executive order to end birthright citizenship has brought that issue, which has been debated for the last 150 years, to the fore. According to Quartz, 39 countries currently offer citizenship to persons born therein, with the exception of children of diplomats, most of which are in the Western Hemisphere.⁵

Most of our major allies do not follow the practice. The Central Intelligence Agency (CIA) World Factbook, for example, states that Germany does not offer citizenship by birth, and offers citizenship by descent only if at least one parent is a German citizen or a resident alien who has lived in Germany for at least eight years.⁶ Similarly, according to the CIA, the United Kingdom does not offer birthright citizenship, and offers citizenship by descent only if at least one parent is a citizen of the United Kingdom.⁷

As The Atlantic has noted, many countries that used to have birthright citizenship have done away with the practice.⁸ It explains:

France did away with birthright citizenship in 1993, following the passage of the Méhaignerie Law. The law limited citizenship to those born to a French parent, or to a parent also born in France. As a result, those born in France to foreign-born parents must wait until they turn 18 to automatically acquire French citizenship (a process that can begin when they turn 13, if they apply).

Ireland was the last of the European Union countries to abolish birthright citizenship, in 2005. Through a referendum backed by nearly 80 percent of Irish voters, citizenship was limited to those born to at least one Irish parent. The decision was a response to a controversy surrounding birth tourism and the high-profile case of Man Levette Chen, a Chinese national who traveled to Northern Ireland so that her daughter would be born an Irish citizen. Chen sought residency rights in Britain, citing her child’s Irish and EU citizenship. Though the United Kingdom Home Office rejected Chen’s application, the decision was overturned by the European Court of Justice in 2004.

Other countries, including New Zealand and Australia, have also abolished their birthright-citizenship laws in recent years. The latest is the Dominican Republic, whose supreme court ruled to remove the country’s birthright laws in 2013. The decision retroactively stripped tens of thousands of people born to undocumented foreign parents of their citizenship and rendered them “ghost citizens,” according to Amnesty International.

Benefits of U.S. Citizenship

United States citizenship is one of, if not the, most exulted and prized statuses in the world. Citizenship in this country offers the most significant economic opportunities. It guarantees the fullest protection of our laws and of the security afforded by our military servicemen and -women around the world. And, most importantly, it provides the chance to participate in the world’s oldest existing democracy.⁹

As an immigration judge, I was honored to have had the authority and opportunity to administer the oath of allegiance and renunciation to new citizens.¹⁰ In addition, I was often called upon to adjudicate cases in which an individual charged as an alien with removability claimed instead to be a citizen of the United States, either by birth or derivation.

Significantly, while there are many benefits that the Constitution and laws of the United States grant to both citizens and aliens, certain benefits are available only to U.S. citizens. These include the right to vote, priority when it comes to bringing family members to the United States, the ability to convey citizenship to a child born abroad, travel with a U.S. passport, and eligibility for most federal jobs and elected offices.¹¹

More prosaically, U.S. citizens have access to many forms of government benefits that are not, as a rule, available to aliens, even to many aliens lawfully present in the United States.¹² Specifically, citizens are not subject to restrictions for the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), the Supplemental Security Income (SSI) program, Temporary Assistance for Needy Families (TANF) cash assistance, and Medicaid that apply to certain categories of aliens in the United States.¹³ In addition, citizens are not barred from receiving federal student aid, as certain aliens are.¹⁴

Most significantly, however, U.S. citizens are not amenable to removal from the United States, unless they have been denaturalized.¹⁵

Becoming a Citizen

Understanding the benefits of U.S. citizenship, the question is then how one becomes a citizen. As the Congressional Research Service (CRS) has explained: “United States citizenship is conferred at birth both under the principle of jus soli (nationality of place of birth) and the principle of jus sanguinis (nationality of parents).”¹⁶ With respect to these individuals, section 301 of the Immigration and Nationality Act (INA) states that:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.¹⁷

In addition, as noted, aliens may become naturalized citizens¹⁸ and “[o]n occasion, Congress has collectively naturalized the population of a territory upon its acquisition by the United States, though in these instances individuals have at times been given the option of retaining their former nationality.”¹⁹

Birthright Citizenship Generally

The first group of individuals identified under section 301(a) of the INA as nationals and citizens at birth, generally, is the group that receives the most public attention²⁰ and the one that raises the most significant public policy issues.²¹

Section 301(a) of the INA tracks the language in the first sentence of the first section of the Fourteenth Amendment to the Constitution, which states: “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.”²²

Because of the ambiguous nature of the language used therein, the second clause of this section has been the primary source of disagreement with respect to the intent and scope of this section. Those who are proponents of birthright citizenship for all those born within the United States (except the children of diplomats and enemy aliens on conquered territory) contend that simply being born on U.S. soil is sufficient to convey citizenship.²³ As CRS has noted, though:

[D]riven in part by concerns about unauthorized immigration, some have questioned this understanding of the Citizenship Clause, and in particular the meaning of “subject to the jurisdiction [of the United States].” Proponents of a narrower reinterpretation of that phrase argue that the term “jurisdiction” can have multiple meanings, and that in the Citizenship Clause, “jurisdiction” should be read to mean “complete jurisdiction” based on undivided allegiance and the mutual consent of the sovereign and the subject. This has been termed a “consensual” approach to citizenship.

Background to the Fourteenth Amendment

A review of the background of the origins of the Fourteenth Amendment is helpful in framing these arguments. First, as CRS explains:

The original framers of the U.S. Constitution referenced, but did not define, national citizenship. The Constitution required that a person have been a citizen of the United States for seven years to be a Representative and for nine years to be a Senator, and that a person be a natural-born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be President. It also gave Congress the power to establish a uniform rule of naturalization, but naturalization refers to the manner in which a non-citizen acquires citizenship, rather than citizenship by birth. Nor did the Naturalization Act of 1790 or subsequent acts until the Civil Rights Act of 1866 define citizenship by birth within the United States. In the absence of any statement in the Constitution or federal statutes that U.S. citizenship was acquired by right of birth in the United States, citizenship at birth generally was construed in the context of the English common law. As noted by the Supreme Court, “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

…

These birthright citizenship principles were not extended to slaves, or generally to Native Americans.²⁴

Specifically, in Dred Scott v. Sandford, the Supreme Court considered a suit brought by the plaintiff Scott, who was a slave in Missouri, but who had lived in the free state of Illinois and in a section of the Louisiana Territory where slavery was outlawed by the Missouri Compromise of 1820, seeking his freedom.²⁵ As the Court stated:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.²⁶

It concluded:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.²⁷

To overrule the Court’s conclusion in Dred Scott “that African Americans were not citizens of the United States … Congress enacted, over the veto of President Andrew Johnson, the Civil Rights Act” of 1866, 14 Stat. 27, ch. 31 (Apr. 9, 1866).²⁸ It stated, in pertinent part: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”²⁹

In April 29, 2015, testimony before the House Judiciary Committee’s Subcommittee on Immigration and Border Security, Professor John C. Eastman explained:

As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided in the 1866 Act.³⁰

Legislative History of the Fourteenth Amendment… Please read the rest here, from CIS.org