Trump cannot ban birthright citizenship, but states undermine the constitutional right


Drawing of pregnant woman behind border wall. Illustration credit: Sally Cobb

Sally Cobb , Staff writer

Even though President Trump has not signed an executive order or changed the words of the Fourteenth Amendment, a threat to birthright citizenship in the U.S. is on the rise. In October 2018, Trump proposed signing an executive order that would end birthright citizenship, specifically for children of undocumented immigrants. “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States… with all those benefits,” Trump said during an interview with Axios. “It’s ridiculous. And it has to end.” The president affirmed that the ban could happen “with an executive order.”

Birthright citizenship is a constitutional American right that guarantees the citizenship of children born in the United States, regardless of their parentage. The Fourteenth Amendment’s protection of birthright citizenship has remained relatively undisturbed or challenged by any presidential administration until recently. Its first sentence reads: “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.” This amendment intended to overturn the 1857 Dred Scott v. Sandford case, which ruled that black people in America, even if they were free slaves or the children of free slaves, could not claim citizenship.

The Fourteenth Amendment says that all people born in the U.S. are citizens and that those citizens cannot be denied “equal protection of the law,” but this amendment has not gone undisputed. In 1900, the Supreme Court was confronted with the case of Wong Kim Ark, who was born in the U.S. from Chinese immigrant parents. The Chinese Exclusion Act barred his parents from gaining U.S. citizenship, so they remained citizens of China. After visiting China, Ark was refused re-entry in San Francisco on the grounds that he assumed the same Chinese citizenship of his parents, and therefore was not a citizen of the U.S.. However, in United States v. Wong Kim Ark, the Supreme Court ruled that the Fourteenth Amendment did, in fact, secure U.S. citizenship for those born on American soil. One of the Justices in the case wrote that “the bonds of citizenship derive from people’s place of birth, not from their blood.”

When Trump threatened to end birthright citizenship in the U.S., many argued that United States v. Wong Kim Ark already settled this issue, yet others believed the language of the ruling only includes children of legal immigrants. Although birthright citizenship has been challenged in cases like the one of Wong Kim Ark, no president before Trump has threatened to dismantle it. Trump is not and has never been silent about his immigration agenda, especially regarding undocumented immigrants.

To end birthright citizenship, Trump would either have to write a new constitutional amendment in order to clarify the meaning of the Fourteenth or sign an executive order — the approach he believes to be more accessible. Regardless of the choice, many believe either option would be greeted with incredible judicial and legislative backlash. Greg Monfils, Urban History and English teacher, said, “there is a lengthy history of cases and commentary and legislation protecting the children of undocumented immigrants….the Fourteenth Amendment is not to be messed with.” Monfils believes that since Trump would have to go through countless legislative steps to get a ban, “it’s not going to happen.”

So far, a ban on birthright citizenship has had little legislative momentum, but organizations like the American Civil Liberties Union (ACLU) frequently pick up cases in which birthright citizenship is threatened. In an interview with the Urban Legend, Amy Argenal, Director of Service Learning, mentioned an ACLU lawsuit in which the Texas Department of State Health Services denied undocumented mothers the birth certificates of their U.S.-born children. Texas claims that the foreign IDs of the undocumented mothers are not official nor valid, and therefore, they cannot obtain their child’s birth certificate. “This is really horrific,” Argenal said, “because what then happens is [the children] can’t enroll in schools, they can’t access medical [care]… because they have undocumented parents, they’re now [facing] a whole a new range of [obstacles].” Although it is not legal, these children are excluded from the basic privileges of U.S. citizens that are theoretically protected through the Fourteenth Amendment.

State’s refusal to issue birth certificates is not the only way of undermining birthright citizenship. There are countless cases regarding citizens who get denied passport renewal or issuance in areas close to the Mexico-U.S. border for reasons not backed by the law. According to the Washington Post, The State Department in Texas said that it “has not changed policy or practice regarding the adjudication of passport applications [and] the U.S.-Mexico border region happens to be an area of the country where there has been a significant incidence of citizenship fraud.” While Texas claims that their policies have not been revised in order to undermine birthright citizenship, the State Department uses instances of citizenship fraud — people claiming birth on U.S. soil to gain citizenship — to justify denial of legal passport renewal and issuance, ultimately challenging their citizenship guaranteed by the Fourteenth.

Although an official ban of birthright citizenship by the government is unlikely, the U.S. is still faced with the dangerous reality that this constitutional right is being undermined at the state level. However, Argenal said that “the ACLU and other organizations are ready to step up [and] already have the cases in line, [so] it’ll be challenged at every step of the way.”