Last updated on: 10/5/2017 3:25:12 PM PST
Birthright Citizenship Debate: Should Children Born on US Soil to Undocumented Immigrants Automatically Have US Citizenship?
General Reference (not clearly pro or con)
Mark Joseph Stern, JD, Law and LGBTQ Correspondent for Slate, in a June 6, 2016 article, "The Supreme Court Needs to Settle Birthright Citizenship," available at slate.com, stated:
"The story of birthright citizenship in the United States is, in large part, the story of the Civil War. In Dred Scott v. Sandford, the Supreme Court decision that arguably rendered a war inevitable, the justices found that black people, even those born in the U.S., were not citizens. Rather, the court held, black people were 'a subordinate and inferior class of beings, who had been subjugated by the dominant race… and had no rights or privileges but such as those who held the power and the Government might choose to grant them.'
After the Civil War, Congress and the states overruled Dred Scott by passing the 14th Amendment, whose very first sentence explicitly granted birthright citizenship to '[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.' This clause was originally designed to give birthright citizenship to formerly enslaved people and their children. But, as the Supreme Court confirmed in a later ruling, it also promised citizenship to anyone born in America. (The only exceptions were the children of diplomats and certain Indian tribes that were then quasi-sovereign.)"
June 6, 2016 - Mark Joseph Stern, JD
Alex Nowrasteh, MSc, Immigration Policy Analyst at the Cato Institute, in a July 10, 2017 The American Spectator article, "In Praise of American-Style Citizenship," available at spectator.org, stated:
"The result of universal birthright citizenship is security. Those born here can rest assured that they will not be stripped of citizenship. Minorities of any kind are protected (with some exceptions like the internment of some Japanese-Americans during World War II) by birthright citizenship. As a result, the descendants of immigrants are legally equal to any other American and can assimilate, accumulate property, and put down permanent roots in the land their parents chose...
The 14th Amendment helped expand membership in the American polity to everybody born here, regardless of the capricious whims of legislators, thus making those diverse people into loyal citizens…
The 14th Amendment was a partial corrective to slavery and racist court decisions, but that should not blind us to how it has also helped to expand the sphere of American citizenship while strengthening America. The descendants of immigrants are assimilating well in part due to birthright citizenship."
July 10, 2017 - Alex Nowrasteh, MSc
Sharon Auvil, JD, Judicial Law Clerk in the US Bankruptcy Courts, in a Winter 2017 DePaul Journal for Social Justice article, "In Defense of Birthright Citizenship," available at DePaul.edu, stated:
"Under the umbrella of family rights with regard to immigration policy, repealing birthright citizenship would severely harm families by creating splits within newly immigrated families, placing unfair burdens on new immigrants, and disabling the American dream. As a hallmark of immigration law, family unity in the U.S. would be at risk of dissolution without birthright citizenship, and immigrant families who are already at an economic disadvantage in the U.S. would face a greater struggle to support themselves and succeed in American society. Most importantly, without birthright citizenship, citizenship in the U.S. would become the basis for a caste system – at the top, a class of Americans, and at the bottom, a class of descendants of modern immigrants, politically, legally, and socially disabled without the privilege of citizenship in the place they call home."
Winter 2017 - Sharon Auvil, JD
Bryan Schatz, MA, Reporter for Mother Jones, in an Aug. 26, 2015 article, "This Is What Would Happen If We Repealed Birthright Citizenship," available at motherjones.com, stated:
"Ending birthright citizenship would result in a flood of newly created stateless children. In the United States, that would quickly become a humanitarian crisis…
Around the world—in countries such as Estonia, Burma, Thailand, Côte d’Ivoire, the Dominican Republic, and many others—some 10 million people are stateless, according to the UN High Commissioner for Refugees. They lack citizenship in the country where they were born, and they have nowhere to go where they can receive legal status. Stateless individuals cannot participate in any political process anywhere. They’re often subject to arbitrary detention. They have limited access to health care and education. They are especially vulnerable to crime and have little legal recourse if they are victimized. They have no economic rights and few job prospects. In extreme cases, as with the Rohingya Muslims of Burma and the Hill Tribe population of Thailand, they’re exposed to increased rates of human trafficking… Without birthright citizenship, the descendants of some undocumented immigrants could be stateless for generations to come."
Aug. 26, 2015 - Bryan Schatz, MA
The Denver Post, in an Aug. 27, 2015 article, "The Absurdity of Trying to Repeal Birthright Citizenship," available at denverpost.com, stated:
"This country isn't about to end birthright citizenship, the longstanding practice under which children born on U.S. soil are granted citizenship even if their parents came here illegally.
The political will doesn't exist to get a constitutional amendment through Congress followed by ratification by 38 states. It's equally unlikely that even a Congress and White House controlled by Republicans could muster enough support to pass a law pretending the 14th Amendment doesn’t mean what it seems to say.
Among other things, birthright citizenship helps spur assimilation and integration of young immigrants into the larger society. And if they've actually grown up here, how are they less American than anyone else?
Yes, birthright citizenship may attract some pregnant 'birth tourists' who come to this country to have children. But the vast majority of immigrants, legal and illegal, come for other reasons — and mostly for economic opportunity.
It's fine if GOP candidates want to push for tighter restrictions on immigration and stronger enforcement of existing laws. That's the responsible way to reduce birthright citizenship. But it is both futile and counterproductive to go after a right conferring citizenship on people who have spent as much of their lives in this country as the rest of us."
Aug. 27, 2015 - Denver Post
Mark Noferi, JD, Senior Counsel for Immigration for the Office of General Counsel in the Executive Office for Immigration Review in the US Department of Justice, in an Apr. 28, 2015 article, "Ending Birthright Citizenship: (Still) Unconstitutional, Unwise, Unworkable, and Un-American," available at the American Immigration Council's Immigration Impact website, stated:
"Repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth. 'Anchor babies,' a term the American Heritage Dictionary calls offensive and disparaging, make no sense given that a child cannot sponsor a parent for citizenship for at least 21 years. And hyperbolic stories about 'birth tourism' point to small numbers of foreigners who come to the U.S. legally to give birth to their children.
Further, repealing birthright citizenship would be incredibly unwise and unworkable, affecting everyone—not just immigrants. If birthright citizenship was eliminated, all American parents would have to establish the citizenship of their children, through arduous, expensive, bureaucratic processes. The United States would likely have to create a national 'birth registry,' and some sort of national ID to be used as proof of citizenship. Americans could be denied citizenship because of a mistake. It would be ridiculous to impact every single American just to punish a few individuals.
Lastly, repealing birthright citizenship would be un-American."
Apr. 28, 2015 - Mark Noferi, JD
James C. Ho, JD, Partner in Gibson, Dunn, & Crutcher, in an Aug. 25, 2015 Federalist article, "Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment," available at the Federalist website, stated:
"Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.
The Fourteenth Amendment begins: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' Repeal proponents contend that this language does not apply to the children of aliens – whether legal or illegal (with the possible exception of lawful permanent residents) – because such persons are not 'subject to [U.S.] jurisdiction.' But text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens."
Aug. 25, 2015 - James C. Ho, JD
John Yoo, JD, Emanuel S. Heller Professor of Law at the University of California at Berkeley and Visiting Scholar at the American Enterprise Institute, in an Aug. 22, 2015 National Review article, "On Citizenship, the 'Birthers' Are Right," available at the National Review website, stated:
"[T]he American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott [the 1857 Supreme Court decision that held that black people, slaves and free, could not be US citizens]. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature."
Aug. 22, 2015 - John Yoo, JD
The Los Angeles Times Editorial Board, in an Oct. 26, 2014 editorial, "The 'Birthright Citizenship' Debate," available at latimes.com, stated:
"Not all of the critics of birthright citizenship are xenophobes or hysterics. Nevertheless, the attack on it is ignoble, based on a canard that women are streaming into the United States to bear 'anchor babies' who will secure their own — and, with luck, their parents' — residence in this country. The reality is that conferring citizenship on any child born in the United States — regardless of the immigration status of its parents — is an important affirmation that being an American doesn't depend on bloodlines…
Birthright citizenship is an emblem of equality and inclusion. Many other countries confer citizenship on the basis of bloodlines, what the law calls jus sanguinis. That makes sense when nationality is conceived of primarily in terms of ancestry or tribe or race or ethnicity. But in America, a nation of immigrants, citizenship is defined differently. That principle was established when the 14th Amendment was adopted, and it should not be tinkered with today in an effort to keep out unwanted immigrants. Indeed, the decision to grant citizenship to everyone born on U.S. soil was made in part so that members of particular minority groups would not be required to win the favor of the majority to claim the privileges of American citizenship.
Birthright citizenship provides a clear standard that sweeps away questions about whether someone has the proper ethnicity or antecedents to be an American. There are too many examples in history of people being victimized because of who their parents were. There is no good reason to add to them."
Oct. 26, 2014 - Los Angeles Times
Michael Fix, Senior Fellow and former President of Migration Policy Institute, in an Aug. 2015 article, "Repealing Birthright Citizenship: The Unintended Consequences," available at the Migration Policy Institute site, stated:
"The reality is this: Repealing birthright citizenship would create a self-perpetuating class that would be excluded from social membership for generations. Working with researchers at Pennsylvania State University, the Migration Policy Institute (MPI) has found that ending birthright citizenship for U.S. babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million people by 2050. Crucially, 1 million would be the children of two parents who themselves had been born in the United States. Under a scenario denying U.S. citizenship to babies with one parent who is unauthorized, our analysis finds that the unauthorized population would balloon to 24 million in 2050 from the 11 million today.
This last finding alone should give pause. Touted by its supporters as a solution to reduce illegal immigration, repeal in fact would have the completely opposite effect.
More crucially, the idea that the U.S.-born children, grandchildren, great-grandchildren, etc. of people born in the United States would themselves inherit their forefathers' lack of legal status would have deep implications for social cohesion and the strength of the democracy itself. This perpetuation of hereditary disadvantage based on the legal status of one's ancestors would be unprecedented in U.S. immigration law...
So why would we alter a hard-fought, 147-year-old constitutional principle that addressed one of the darkest chapters in our history and has served the country so well? We should not: there is nothing about eliminating birthright citizenship that is in the national interest."
Aug. 2015 - Michael Fix, JD
Donald Mann, President of Negative Population Growth (NPG), in a June 6, 2017 NPG article, "Reforming Birthright Citizenship: A Must for U.S. Policy," available at npg.org, stated:
"In an effort to further their agenda of mass migration to and permanent legal settlement within the United States, these special interest groups are demanding that the U.S. adopt their interpretation of our nation's 14th Amendment:
Any child born on American soil shall be automatically granted full legal United States citizenship. Even if one or both parents are in the U.S. illegally, the child must still be given citizenship – and therefore have the right to later sponsor a large number of family members to live in the U.S. as legal immigrants.
This application of the law – which has been widely upheld by the U.S. court system and championed by an ever-more-accommodating federal government – is par for the course in a deteriorating immigration system that encourages massive population growth. Specifically, this interpretation of the 14th Amendment has given rise to the phenomenon known as 'Anchor Babies' – children whose parents intentionally give birth to them within the U.S. for the purpose of gaining citizenship. Once automatic birthright citizenship is assigned to the child, the 'anchor baby' is then later used to manipulate our nation's present chain migration policies – ensuring legal immigration privileges are granted to the child's parents, siblings, and even adult members of their extended family…
NPG has long held that our nation must adopt reasonable and responsible immigration policies, which includes the immediate clarification of the 14th Amendment to end the practice of automatic birthright citizenship."
June 6, 2017 - Donald Mann
Steve King, US Representative (R-IA), in a Jan 3, 2017 press release, "King Introduces Four Immigration Bills, Including Sarah's Law," available at steveking.house.gov, stated:
"A Century ago, it didn't matter very much that a simple practice began that has now grown into a massive issue of birthright citizenship or the anchor baby agenda. When automatic citizenship started being granted to all babies born in the United States, our lawmakers missed the clause in the 14th Amendment that says, 'And subject to the jurisdiction thereof.' So once the practice began, it grew out of proportion and today between 340,000 and 750,000 babies are born in America each year that get automatic citizenship even though both parents are illegal. I know of no other country in the world that does this, and it must end. My Birthright Citizenship Act of 2017 fixes it, clarifies the 14th Amendment and clarifies the Constitutional meaning of the clause, 'And subject to the jurisdiction thereof.' President-elect Trump repeatedly called for this bill, and it should be a top priority in Congress."
Jan 3, 2017 - Steve King
David Vitter, JD, US Senator (R-LA), in a Sep. 3, 2015 article, "Let's Get Real and End Birthright Citizenship for Illegal Immigrants," available at thehill.com, stated:
"Every 93 seconds a beautiful baby is born in the United States . . . to illegal immigrant parents. Due to the current misinterpretation of the 14th Amendment, that child is immediately deemed a U.S. citizen--and given all the related financial, legal, and social benefits, which includes opportunities for those illegal immigrant parents to cash in on many of the benefits.
We simply cannot continue to ignore this. 400,000 cases every year isn't a trivial distraction. It's a real part of our illegal immigration problem. We must face the fact that the current policy of birthright citizenship is a huge magnet for more illegal crossings into our country. And unfortunately, that's often at the hands of very dangerous people.
This magnet attracts women from Mexico and Central America to make the dangerous trek north, often in the hands of 'coyotes' or human smugglers and drug cartels. These women frequently put their lives into the hands of criminal gangs, some who make a living on human trafficking.
Then there's the growing birth tourism industry. Many foreign women, notably from China, pay huge amounts of money in order to travel to the United States and be housed, often in shady accommodations, while pregnant with the intent of birthing a child during their stay…
Isn't it time for us to make significant, real reforms to our immigration laws so that America – the world's melting pot – can welcome immigrants in a legal, organized, and safe way? Let's get serious about that. Let's control our borders and the process of granting citizenship, including by ending birthright citizenship for illegal immigrants."
Sep. 3, 2015 - David Vitter, JD
Edward J. Erler, PhD, Senior Fellow at the Claremont Institute, Aug. 19, 2015 article, "Trump's Critics Are Wrong about the 14th Amendment and Birthright Citizenship," available at the National Review website, stated:
"Those who defy the laws of the U.S. should not be allowed to confer such an advantage on their children. This would not be visiting the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. would not be denied anything to which they otherwise would have a right. Their allegiance should follow that of their parents during their minority. A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation. No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I believe, is eminently just."
Aug. 19, 2015 - Edward J. Erler, PhD
Lino A. Graglia, LLB, A.W. Walker Centennial Chair in Law at the University of Texas at Austin School of Law in his testimony before the House of Representatives Judiciary Committee on Apr. 29, 2015, available at house.gov, stated:
"It is difficult to imagine a more irrational and self-defeating legal system than one that makes unauthorized entry to this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry a grant of American citizenship. How can such a legal system have come to be and be permitted to continue?
In my opinion, a law ending birthright citizenship for the children of illegal aliens should and likely would survive constitutional challenge. The Constitution should not be interpreted to require an absurdity."
Apr. 29, 2015 - Lino A. Graglia, LLB
Rush Limbaugh, radio talk show host, in a radio show quoted in the Aug. 20, 2015 Breitbart article, "Rush: 14th Amendment 'Says Nothing about Birthright Citizenship,'" available at breitbart.com, stated:
"The 14th Amendment says nothing about birthright citizenship. It just doesn't. As I say, Brother Levin made the point exquisitely last night. They want the Constitution to say that. They want people to believe the Constitution says that if you are born to an illegal alien mother, that you are automatically an American citizen. They want to insist that that's what the Constitution says, but it doesn't. And again a reminder, the Supreme Court has never ruled that the children of illegal aliens are American citizens. The Supreme Court has only granted citizenship to the children born to legal immigrants, not illegal. Who in their right mind ever thought that the birth of a child to an illegal immigrant converted to citizenship? A lot of people believe it. It's not in the 14th Amendment…
I can imagine that many of you hearing me say this think I have to be wrong. Maybe, you know, I'm well-intentioned and you know I'm not lying to you, but maybe I'm wrong because everybody knows that if you're born in America, you are a citizen. No, you're not. Now, clearly the invaders think so. It's one of the reasons they're coming. They come pregnant, they give birth, they think automatically there is citizenship involved. So that's one thing to straighten out. And as I say, the truth here happens to be perceived by a lot of people as the extreme position, when all it is is a literal interpretation of the Constitution."
Aug. 20, 2015 - Rush Limbaugh
John C. Eastman, JD, Henry Salvatori Professor of Law & Community Service and former Dean at the Chapman University Dale E. Fowler School of Law, in Apr. 29, 2015 testimony to the US House of Representatives, "The True Meaning of the Fourteenth Amendment's Citizenship Clause," available at house.gov, stated
"[T]he modern view [of the Fourteenth Amendment] ignores—or misunderstands—a key phrase in the Citizenship Clause, which sets out two criteria for automatic citizenship rather than just one. Mere birth on U.S. soil is not enough. A person must be both 'born or naturalized in the United States' and 'subject to its jurisdiction' in order to be granted automatic citizenship. Congress remains free to offer citizenship more broadly than that, of course, pursuant to its plenary power over naturalization granted in Article I, Section 8 of the Constitution, but it has done so. Current law merely parrots the 'birth' and 'subject to the jurisdiction' requirements that are the floor for automatic citizenship already set by the Constitution.
With the ever-increasing waves of illegal immigration into this country undermining the policy judgments Congress has made about the extent of immigration that should be allowed, it is particularly important to get the birthright citizenship issue right, as the mistaken notion about it has provided a powerful magnet for illegal immigration for far too long. Worse, it has encouraged a trade in human trafficking that has placed at great risk millions of men, women, and children who have succumbed to the false siren's song of birthright citizenship."
Apr. 29, 2015 - John C. Eastman, JD
Gerald Walpin, JD, former Inspector General of the Corporation for National and Community Service, in a Feb. 22, 2016 Federalist Society article, “Birthright Citizenship: Two Perspectives,” available at fed-soc.org, stated
"Websites in many foreign countries induce pregnant women to come to and pay up to $80,000 to 'maternity hotels' in the United States, on the promise of American citizenship to the newly-born child who then returns to the foreign country. Mexican pregnant women cross the border to give birth in near-border U.S. hospitals for the same purpose. Many illegal immigrants in this country have children with the expectation that the child will be a U.S. citizen at birth, and thereby anchor the parents to be able to remain here…
We start with the relevant words of the 14th Amendment ratified on July 9, 1868. It requires that two conditions—not just birth in this country—be present for citizenship to be granted: (i) the baby must be 'born … in the United States;' and (ii) when born, the baby must be 'subject to the jurisdiction' of the United States. A cursory glance at the words themselves makes it clear that those who argue that mere birth within the United States results in citizenship fail reasonably to address this second requirement….
Another reason the Birthright Citizenship provision does not give automatic citizenship to U.S.-born children of illegal or transient aliens is that there is no evidence that those who voted to adopt the 14th Amendment even considered such a scenario. The purpose of this portion of the 14th Amendment was, as one senator put it during the Senate debate on the 14th Amendment, 'simply to declare that Negroes shall be citizens of the United States,' and therefore guaranteed equal citizenship rights in the aftermath of the Civil War.
Furthermore, they could not have intended to grant citizenship to children of illegal aliens because no category of 'illegal aliens' then existed. In 1866, when Congress approved the amendment, immigration was essentially unhindered; any immigrant was a legal immigrant, entitled to citizenship after a minimum residence period."
Feb. 22, 2016 - Gerald Walpin, JD
Ted Cruz, JD, US Senator (R-TX), in an Aug. 22, 2015 statement quoted in a Jan. 21, 2016 USA Today article, "Fact Check: Ted Cruz on Birthright Citizenship," available at usatoday.com, stated:
"I think we need to end birthright citizenship. As a policy matter, it doesn’t make any sense that we should be incentivizing illegal immigration. There's no reason that federal law should state that if someone is here illegally, that their children are automatically U.S. citizens. … I've had that position for many years, back in 2011 when I was running for the U.S. Senate, I said very explicitly then we should end birthright citizenship and I think that's still the right position."
Jan. 21, 2016 - Ted Cruz, JD