Immigration has been a hot topic for headlines, and most recently the Administration has raised questions about birthright citizenship — a legal right afforded to American-born children by the 14th Amendment. To help you make sense of all this, LIRS has sought to provide answers to some of the most frequently asked questions on this issue.
- Why is birthright citizenship in the news?
- What is the likelihood that the administration might repeal birthright citizenship?
- Is it true that birthright citizenship is a factor in the increasing flow of immigration?
- Is birthright citizenship something an immigrant parent can easily take advantage of?
- What impact would repealing birthright citizenship have?
- What can I do to engage with this issue?
Why is birthright citizenship in the news?
The administration recently suggested that the President might issue an executive order to repeal the constitutional amendment that guarantees birthright citizenship.
Birthright citizenship is a legal right, granted to Americans by the 14th amendment, that secures American citizenship for all children born within the United States border. This has been established law for more than a century (since 1868) and is known as the bedrock of civil rights protections in the U.S. It has served as a model to democracies around the world.
This is not the first time that the 14th amendment has been challenged. There have been multiple proposals to abolish birthright citizenship previously, both on the federal and state level, none of which have been successful.
What is the likelihood that the administration might repeal birthright citizenship?
Through normal processes, a change such as this one would require repealing the 14th amendment, an action which is very unlikely to occur based on American history. Of the 11,699 proposed amendments that have gone through Congress since the ratification of the Bill of Rights in 1789, only one amendment, the 18th amendment establishing prohibition, has been repealed.
Most legal experts agree that issuing an executive order to repeal an amendment is unconstitutional, as this repeal must be proposed as an amendment and move through Congress just like any other bill.
The Supreme Court has ruled twice on the issue in favor of protecting birthright citizenship, first in 1898 United States v. Wong Kim Ark case (6-2 majority), and again nearly three decades ago, in the case of Plyler v. Doe which made clear that the 14th Amendment applies to ALL persons born in the U.S., whether their parents are legally present or not.
However, with the recent confirmation of Judge Kavanaugh, it is possible that the administration would attempt to issue an executive order in the hopes that the order would be upheld by a Supreme Court that now favors the administration’s agenda.
Shortly after the President proposed the executive order, Sen. Lindsey Graham (R-S.C.) announced that he would be introducing companion legislation to end birthright citizenship in Congress.
With midterm elections upon us, there are many variables that make it difficult to say for sure how likely it is that any measure to repeal birthright citizenship would move forward. At this stage, LIRS staff watching Capitol Hill are doubtful that this legislation would succeed in Congress; but we are less confident in predicting the outcomes were this measure to go before the Supreme Court.
Is it true that birthright citizenship is a factor in the increasing flow of immigration?
The administration has cited birthright citizenship as a motivation for immigrants to cross our border; this newest challenge to birthright citizenship is their latest attack on immigrants.
There is no evidence, however, that suggests undocumented migrants come to the United States solely for the purpose of giving birth. Those that do give birth in the United States travel to this country for a variety of reasons; the majority of today’s immigrants – including many of the people that are traveling in the recently publicized caravan – are seeking to escape violence in their native countries.
Is birthright citizenship something an immigrant parent can easily take advantage of?
A child born as an American citizen cannot petition for the legal status of their parents until they are 21 years of age. For those over the age of 21 that do petition, the process can take up to 10 years, often requiring that the parent leave the country for many years at a time.
It is highly improbable that an adult immigrant would choose to conceive a baby and travel thousands of miles while pregnant with the sole intention of gaining citizenship status as a parent…31 years after their child has been born in the U.S.
What impact would repealing birthright citizenship have?
The immediate consequence of this course of action would be the creation of an entire population of stateless people within our border. If a child is born in the United States but not given citizenship, depending on the home country of the parents, that child may not have citizenship of any kind. Children born under these circumstances would be incredibly vulnerable as they would lack vital access to health care and public services.
Furthermore, the United States does not have the infrastructure or any form of legal precedence to manage the legal processing and vital child welfare needs of children who lack documented citizenship.
This would present a grave threat to the health of newborn children and infants who fall into this category.
What can I do to engage with this issue?
At this point, the most important thing that you can do is spread accurate information on this topic.
There is an unprecedented amount of misinformation circulating on topics regarding immigrants and immigration; and it is vital that people are informed and equipped to respond in everyday conversations to the topics that are in the news.
You can also make a donation to support LIRS advocacy, as we continue to break down the barriers to information and bring you the most important issues on Capitol Hill.