Birthright Citizenship

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… Ratified as a Constitutional Amendment on July 9, 1868 in the aftermath of the Civil War, the Fourteenth Amendment ensured the citizenship of black Americans and thus the preservation of their legal and civil rights. 151 years later, this Amendment is being called into question for its expanded modern usage that the President and some legal scholars believe were not intended by the Amendment’s writers and does not adequately adhere to the original language of the Amendment – specifically the phrase “subject to the jurisdiction thereof.”

Before delving into this contested modern interpretation of the Fourteenth Amendment, the question should first be answered: Is the President permitted to change the Citizenship Clause of the Fourteenth Amendment by issuing an Executive Order? The President is plainly entitled to issue an Executive Order attempting to do so, but it will most certainly be challenged by courts. Secondly, from a legal standpoint, it is dubious that an Executive Order could actually remove the Citizenship Clause, which likely requires the passage of another Amendment to be changed, much like the Prohibition Amendments – the Eighteenth Amendment was only repealed by the passage of the Twenty-First Amendment. But the question at the core of this matter still stands: Should birthright citizenship be eliminated?

Countries that do not offer birthright citizenship follow the idea of jus sanguinis, or “right of blood,” where children inherit the citizenship(s) of their parents, regardless of where they are born. Birthright citizenship is based on the idea of jus soli, which means “law of the soil.” American citizenship is awarded to children based on their area of birth, and as it stands today, this applies to children of both legal and unauthorized residents of the United States rather than the original group affected by this policy: black Americans who had been freed by the abolishment of slavery. The conflict of Trump’s potential Executive Order rests on the idea that children of illegal immigrants should not immediately be awarded citizenship. This is based on the belief that immigrants are incentivized by America’s birthright citizenship policy to illegally enter and give birth in the United States so that their children can function as “anchor babies,” or children who sponsor their parents’ and/or extended family’s legal immigration to the US.

Now, while this may be a valid or partial incentive for certain parents, the process of applying for citizenship in this manner would still take over 21 years to complete since children who are US citizens must be at least 21 years old to sponsor their parents, and as illegal immigrants, these parents would have to return to their home countries for ten years before being able to apply for citizenship. There are a handful of immediate benefits to having a citizen child for undocumented immigrants, such as receiving food vouchers through the Women-Infants-Children (WIC) Program or the child being eligible to sign up for Medicaid, even if their parents would not be eligible. Citizen children might also be able to qualify their parents for deportation relief programs, but even this benefit is limited to 4,000 undocumented immigrants per year, with other residency restrictions as well.

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