What is birthright citizenship?
President Donald Trump’s assertion that he wants to do away with the constitutional right to citizenship for babies born in the United States to non-citizens and undocumented immigrants would be difficult — if not nearly impossible — to do, experts say.
“This is the most preposterous, craziest proposition,” said Rebeca Sanchez-Roig, an immigration attorney who spent more than 15 years as a federal prosecutor with the Department of Homeland Security and now works in private practice in Miami.
“No matter what [Trump] wants politically, he can’t just say ‘you are no longer a citizen of the United States.’ That’s legally impossible as long as there is a constitutional amendment that says that all persons born in the United States are citizens of the United States,” Sanchez-Roig said.
Trump, who has long advocated for an end to birthright citizenship for babies whose parents are undocumented or have a temporary status, said in an interview with Axios on HBO that he plans to sign an executive order to end the right for children in that category. A clip of the interview was made public Tuesday morning, exactly one week before midterm elections, creating instant refutes from activists, lawmakers and constitutional experts.
Still, it caused concern: About 275,000 babies were born in the U.S. to immigrant parents without legal status in 2014, which is about 7 percent of the 4 million births in the country that year, according to the Pew Research Center. And there are more than 4 million minors born in the United States to at least one undocumented parent, according to a Pew analysis.
In Miami-Dade, where more than half of its almost 2.6 million residents are foreign born, immigrant rights groups and members of the South Florida congressional delegation — most notably Republicans — were quick to reject Trump’s plan.
Maria Rodriguez, executive director of the Florida Immigrant Coalition, portrayed the plan as yet another Trump attack against the immigrant community and said immigrant families are “stronger and more determined than ever.”
“The Trump administration has tried to go full force with batons after our families, using disaster relief funds to build internment camps for immigrants and putting our children in cages. They’ve tried to take away benefits from immigrants regardless of status through their proposed changes to residency requirements. They’ve tried to scare us from being counted in the census and slashed the number of refugees allowed in the country to the lowest in history. And they’ve already tried to take away our citizenship through the unprecedented denaturalization task force,” Rodriguez wrote.
“Now Trump wants to deny citizenship to our newborn immigrant children, in direct contradiction of the U.S. Constitution, spouting easily disprovable lies claiming that the U.S. is the only country to grant birthright citizenship.”
Trump told Axios that the U.S. was “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 of those benefits. … It’s ridiculous. It’s ridiculous.”
But the president’s assertion is not accurate. In fact, more than 30 countries, including Canada and Mexico, grant birthright citizenship.
Following the president’s statements, members of the Miami congressional delegation tweeted that birthright citizenship is protected by the Constitution and the president can’t end it by executive order.
In an email to the Miami Herald, Joanna Rodriguez, a spokesperson from Miami Republican Rep. Carlos Curbelo’s office, said: “The Congressman does not support an end to birthright citizenship through any means and would oppose such an effort in the Congress.”
In a statement, U.S. Rep. Mario Diaz-Balart, of Florida’s District 25, also said he strongly disagrees with the proposed executive order.
“As a Member of Congress, I take an oath to support the United States Constitution. In this instance, the 14th Amendment to the U.S. Constitution states that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. All persons in the U.S., thus, except for accredited foreign diplomats in specified instances, are subject to U.S. laws, and, if born in the U.S., are U.S. citizens.”
Florida Democratic Rep. Frederica Wilson posted on Twitter: “Citizenship is a constitutionally protected right granted to anyone born in the United States and cannot be changed by executive order. Only an amendment to the Constitution can change how it is conferred.”
“The Constitution says that if you are born in the USA, you are an American citizen,“ Sen. Bill Nelson, who is being challenged by Gov. Rick Scott, posted on Twitter. “You cannot change that with an executive order.”
Miami Republican Sen. Marco Rubio did not issue a statement Tuesday. In an interview with Fox News in 2015, Rubio said that while he did not support repealing the 14th Amendment he believed that the issue of birthright has been abused and said he would be open to policy that addressed the issue.
“I see it in South Florida where I live. I’m not talking about poor people. These are wealthy families that come in, eight and a half months pregnant, from Latin America, they go to the hospital, they have a child with U.S. citizenship, they go back to their country of origin and they’re hedging their bets that if things ever go wrong, they have citizenship,” Rubio told Fox News, according to the Washington Examiner. “I have said I am open to exploring ways to looking at people that are deliberately coming here for purposes of having a child. I don’t know how you do that.”
South Florida is the metropolitan area with the fifth-largest population of undocumented immigrants in the United States, with nearly half a million undocumented immigrants living in the areas of Miami, Fort Lauderdale and West Palm Beach, according to a Pew Research Center analysis.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told Axios.
While Trump suggested that he could end birthright with the stroke of a pen, experts said the president does not have the power to unilaterally end or alter birthright citizenship for children born on U.S. soil, regardless of the parents’ legal status. That’s because it is a right enshrined in the 14th Amendment of the U.S. Constitution. Such executive order would swiftly trigger legal challenges and possibly end up in the Supreme Court.
University of Miami law professor Kunal Parker, who specializes in American legal history and immigration law, said the final ruling would ultimately come from the newly constituted Supreme Court — to which Trump recently appointed conservative Judge Brett Kavanaugh.
“The key point here is that nothing is going to be legal until the U.S. Supreme Court rules on what the meaning of the birthright citizenship rule is. Neither Congress nor the president will be able to change that without the Supreme Court,” said Parker.
Congress passed the 14th Amendment in 1866 after the Civil War, to guarantee citizenship rights to descendants of slaves. The amendment nullified a Supreme Court decision from 1857 known as the Dred Scott decision, which denied citizenship rights to people “whose ancestors were imported into the U.S. and sold as slaves.”
The legal protection was challenged in 1898, when Wong Kim Ark, who was born in San Francisco to Chinese citizens, was refused entry into the United States following a temporary trip to China. The court sided with Kim Ark, opining “unequivocally that those born within the U.S. are citizens thereof. The citizenship of your parents has nothing to do with your ability to become a citizen.”
“It was litigated over a century ago, [but] it has been questioned by scholars,” Parker said. “At various points there have been people who questioned the meaning of it.”
Some conservatives argue that the 14th Amendment and the Wong Kim Ark provision were intended to guarantee citizenship to children born to citizens and lawful permanent residents. Therefore, they argue, children of unauthorized immigrants and people visiting the U.S. on temporary visas don’t have an automatic right to citizenship at birth.
For years, Republicans in Congress have introduced several bills to end birthright citizenship unsuccessfully.
Constitutional Scholar John Eastman told Axios on HBO that the Constitution has been “misapplied” over the past four decades.
The 14th Amendment states that, “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.”
Eastman argues that the line “and subject to the jurisdiction thereof” refers to people “with full, political allegiance to the U.S.,” such as green card holders and citizens.
This story was supplemented with information from wire services.