President-elect Donald Trump is considering signing an executive order to eliminate birthright citizenship. In a statement from last May, Trump declared that on Day One, he would ensure the “correct interpretation of the law” would end “automatic US citizenship” for the children of illegal migrants.
This has caused dismay for some on the left: the ACLU called the plan “unconstitutional,” and one House Democrat called it “shameful.”
However, there’s an argument that birthright citizenship is something of an anachronism, one which no longer serves the interests of the United States.
The practice comes from the passage of the 14th Amendment in the 1860s when Congress was wrestling with ensuring newly freed slaves would be able to practice their citizenship rights. The amendment reads: “All persons born in the United States, and subject to the jurisdiction thereof, shall be citizens of the United States.”
This ensured children of freed slaves would be citizens — but it also has been taken to mean that anyone born on American soil would be, too. This was not always the case; children of Native Americans, for example, were not made automatic US citizens until 1924.
In the 21st century, illegal migrants have abused this provision. At the time of the passage of the 14th amendment, massive illegal migration was not an issue — but in the modern era, it provides a tremendous incentive for migrants to come to America: it guarantees their children, colloquially called “anchor babies,” will be Americans, making deportation more difficult.
The numbers are significant: in 2018, there were around 250,000 “anchor babies” born, and one study pegged the number at 300,000 annually — accounting for millions in total.
Some conservatives, backing up Trump, have said that the 14th Amendment is misread. Senator and lawyer Mike Lee (R-UT) zoomed in on six words in the amendment: “…subject to the jurisdiction thereof.” Those, he argued, refer to the fact that newly-born individuals must be subject to American jurisdiction — as in must be the children of those who are already Americans.
Heritage Foundation fellow Hans von Spakovsky agreed and suggested that the State Department has wrongly interpreted the amendment and the statute governing citizenship, saying Trump could order them to do otherwise via an executive order.
If it survived court challenges, such a move would be a seismic shift. But Trump’s entire transition has indicated he plans on carrying out the immigration promises he made on the campaign trail.
Incoming deportations chief Tom Homan has argued that families could be deported together, and Stephen Miller — who will serve as Trump’s Homeland Security Advisor and helped author the “Muslim ban” — has assured that mass deportations and funding Immigration and Customs Enforcement would be the top priority.
