Amy Swearer Legal Policy Analyst
Hans A. von Spakovsky Election Law Reform Initiative and Senior Legal Fellow
Oct 31st, 2018
Here are some the basic things you should know about birthright citizenship.
President Donald Trump’s announcement that he’s considering an executive order on birthright citizenship has raised questions and much interest in the 14th Amendment. Here are some the basic things you should know about birthright citizenship.
- Universal birthright citizenship is a misinterpretation of the 14th Amendment (“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.”) and is inconsistent with the intent of the amendment’s framers.
- Based on the legislative history at the time, the 14th Amendment’s framers intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction, primarily the newly freed slaves, who were lawful permanent residents.
- Owing allegiance to the United States and being subject to its complete jurisdiction means being “not subject to any foreign power” and excludes those only temporarily present in the country.
- Most legal arguments for universal birthright citizenship point to the Supreme Court’s 1898 decision in United States v. Wong Kim Ark, which challenged the government’s decision to deny re-entry to a U.S.-born child of foreign nationals who were legally present and permanently residing in the United States.
- Wong Kim Ark stands only for the narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing with respect to the U.S.-born children of illegal or non-permanent resident aliens.
- In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
- American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
- Neither the Supreme Court nor Congress has clarified that the U.S.-born children of illegal or non-permanent resident aliens are U.S. citizens; federal law (8 U.S.C. §1401) simply repeats the language of the 14th Amendment.
- The president has the constitutional authority to direct executive agencies to act in accordance with the original meaning of the Citizenship Clause, and to direct agencies to issue passports, Social Security numbers, etc., only to those whose status as citizens is clear under the current law.
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