Ending Birthright Citizenship Targets and Harms…Babies

Child Rights
Children of Immigrants

A baby is God’s opinion that life should go on. . . Never will a time come when the most marvelous recent invention is as marvelous as a newborn baby. – Carl Sandburg

Every parent knows the incredible miracle that is birth. Every year, four million miracles are born in this country and the Constitution’s 14th Amendment guarantees them U.S. citizenship.

The 14th Amendment begins with the Citizenship Clause, which reads:

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.

For babies born in this country, they rely upon adults to cherish them and to protect them from harm. The Constitution’s Citizenship Clause is fundamental to that protection.

Unfortunately, if the President and a number of Members of Congress have their way, this constitutionally guaranteed right of citizenship at birth would end and the entire system would be thrown into chaos by requiring a parent’s immigration or citizenship status to be verified by some new government bureaucracy for every single child born in this country. When it comes to proving one’s citizenship, birth certificates would suddenly be meaningless.

Instead, citizenship would be determined by bloodline and so the child’s citizenship would have be contingent upon the citizenship of either the father, the mother, either parent, or both. Who decides? What about children born out of wedlock or where the child’s father is in question? If the citizenship of the mother decides the child’s citizenship, would some of the President’s own children have been at risk? Could a politician or government bureaucrat go back and challenge the citizenship papers of a family’s grandparents or great-grandparents and suddenly challenge the subsequent citizenship of the child?

Consequently, in the debate over immigration policy and whether Congress or the President can change the Constitution’s Citizenship Clause by law or executive order, the critical fact that ending birthright citizenship would threaten and put in jeopardy the future of children born in this country has been lost.

James Ho explains in The Federalist:

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.

But for those that are heartless and think babies are not worthy of our care and love, they must at least understand the fact that the nation’s future is contingent upon the success of our nation’s children — regardless of their gender, race, religion, or parents’ immigration status.

In fact, it always has.

As demographer William Frey explains in his book Diversity Explosion: How New Racial Demographics Are Remaking America:

. . .a growing diverse, globally connected minority population will be absolutely necessary to infuse the aging American labor force with vitality and to sustain populations in many parts of the country that are facing population declines. Rather than being feared, America’s new diversity — poised to reinvigorate the country at a time when other developed nations are facing advanced aging and population loss — can be celebrated.

Although the President claimed, in the State of the Union, that “as President of the United States, my highest loyalty, my greatest compassion and my constant concern is for America’s children, America’s struggling workers and America’s forgotten communities,” his policies on health care, education, the Child Tax Credit, child nutrition, and the environment have almost all been uniformly harmful to children.

When it seems that the Administration can’t possibly do more to threaten vulnerable kids, the President has found a way through this new attack questioning whether children born in this country can even be citizens.

As Washington Post columnist Michael Gerson writes:

In President Trump’s closing argument of the midterm elections — an attack on birthright citizenship — he has again targeted the children of migrants.

I say “again” because it is something of a theme. There was the use of family separation as a punishment for illegal immigration — effectively using the traumatization of children, who described cold, hunger and fear, as a tool of deterrence. There was the transfer of migrant children under cover of darkness to a tent city in the Texas desert.

This time, Trump warns of an invasion of the United States from the womb. The erection of a wall is more complicated in this case. So the president has announced that he is contemplating an executive order that would reinterpret the 14th Amendment to make the citizenship of children born in the United States dependent on the legality of their parents, or something.

While it is clear that what is driving this change is xenophobia, Gerson recognizes how such a radical policy change to the Constitution would specifically mark and harm babies and children.

Constitutional law expert and professor Garrett Epps does the same with a perfect amount of sarcasm in this tweet.

Ending birthright citizenship would also undermine a founding American principle. As former Assistant Attorney General Walter Dellinger explains:

For the earliest days of our nation, all those who were born on its soil and governed under the flag were considered citizens. The simple fact of birth here in the United States was what mattered.

And then came Dred Scott v. Sandford. In a catastrophic decision, the Supreme Court created a monstrous exception to the common-law birthright rule, holding that no person of African descent — including free people — or their descendants could ever be citizens of the United States, regardless of their birth here.

Dellinger adds:

The nation soon plunged into the heart of darkness (i.e., the Civil War), claiming hundreds of thousands lives in a battle for freedom. From that experience, we learned that our country should never again trust judges or politicians with the power to decide that some people born in the United States should not be citizens.

In an attempt to permanently fix this problem, the 14th Amendment’s Citizenship Clause was adopted in 1868 and overturned the 1857 Supreme Court Dred Scott decision, which many legal scholars consider the worst Supreme Court decision in the history of the country, but also was purposely broader to protect the citizenship for all babies (other than the children of foreign diplomats or foreign soldiers) born in this country.

Elizabeth Wydra of the American Constitution Society writes:

Our nation fought a war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color, or ancestry.

In 1898, in United States v. Wong Kim Ark, the Supreme Court affirmed the 14th Amendment applied citizenship to children of non-citizens born in the United States. The Supreme Court decision in that case is pretty clear:

. . .the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory. . .

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

Therefore, with the exception of just 11 years in our nation’s 242-year history, the issue of birthright citizenship has been accepted as common law and then a constitutional right.

Although the vast majority of constitutional scholars and legal experts believe that the President cannot simply change the Constitution by executive order or even through an act of Congress, the President has made it clear that he wants to try.

As Gerson explains, the Republicans that authored the 14th Amendment “wanted to end the Confederate view of citizenship — which was contingent on color — finally and forever. The 14th Amendment was intended to be a stake in the heart of bloodline citizenship, which is precisely what Trump hopes to revive.”

Some child advocates are hoping to avoid what is a rather nasty debate, but we must engage in that discussion because, with 1 in 4 of our nation’s children living in immigrant families, punitive measures directed at immigrants will disproportionately devastate children. Immigration policies, such as family separation, trying to gut the Flores settlement that provides basic protections for children seeking asylum (please submit commentsagainst this proposed regulation by Tuesday, Nov. 6) , and ending birthright citizenship, all target children for harm.

If Trump, Vice President Mike PenceSen. Lindsey Graham (R-SC), or Rep. Steve King (R-IA) were to successfully end birthright citizenship, the consequence would be to subject hundreds of thousands of children every year to rounded up and deported.

Explaining the horribly ramifications of such a change in the Constitution, Professor Epps writes for The Atlantic:

[Trump] proposes a policy that will by design intern innocent children who are American citizens, and remove them to countries where they have never before set foot. On this scale, we are not talking about immigration policy; we are talking (I don’t have time for political correctness here) about a crime against humanity.

Even worse, other children would be pushed into the status of being stateless. In other words, they would not be citizens of any country on the planet.

Professor Epps points out:

. . .it would create a shadow population of American-born people who have no state, no legal protection, and no real rights that the government is bound to respect.

And, as attorney Margaret D. Stock wrote for the Cato Journal:

The change would create a large class of stateless children who are born and raised in the United States but who do not have strong ties to any other nation. Some will voluntarily leave the United States as children or perhaps upon reaching adulthood. Some will be deported (at taxpayer expense). Those of the group who stay in the United States will have the right to attend public school through the end of high school, but upon graduating, they won’t be eligible to join the U.S. military, get jobs, run for political office, contribute to Social Security, purchase health insurance, or do a myriad of other mundane daily activities that young American citizens do — and which keeps the U.S. economy going.

According to estimates by the Migration Policy Institute, a policy to end birthright citizenship is estimated to increase the number of unauthorized citizens living in the United States by up to 13 million by 2050. That would be a disaster with lifelong consequences for children.

Incredibly, under the guise of reducing undocumented immigration, ending birthright citizenship would have the opposite effect of increasing the number of undocumented immigrants in this country by millions. This is comparableto the President proposing to protect people with pre-existing conditions while his Administration is proposing new rules that “would make it easier for insurance providers to discriminate against sick consumers” and supporting a lawsuit to throw out protections for those with pre-existing conditions.

Moreover, beyond the negative economic repercussions of having large numbers of young people living in the shadows of society, Stock adds that ending birthright citizenship would actually be harmful to all children and families and not just the children of immigrants who are born in the country. She explains:

Once a change to the Citizenship Clause goes into effect, newborns claiming U.S. citizenship will necessarily be required to demonstrate not just the fact of their birth in the United States, but also the citizenship and immigration status of their parents at the moment of birth — and presumably, newborns will have to demonstrate this fact to some bureaucracy that has the technical and legal capacity to determine what their parents’ status was at the moment of their birth.

Stock estimates this will “cost American households about $2.4 billion per year” and that is a conservative estimate because it doesn’t even include the potential costs of having to hire a lawyer to deal with the paperwork, submit the legal documents, and litigate a problematic bureaucratic interpretation. She adds:

If proponents of changing the Fourteenth Amendment have their way, every baby born in America will now face a bureaucratic hurdle before he or she gets a birth certificate — and clearing the bureaucratic hurdle will often require expert legal services.

These policies might serve to stir up the passions of white nationalists, racists, and xenophobic groups in the country, but they do so by at enormous harm to children and families and to our social and economic future.

In short, ripping apart the Constitution’s 14th Amendment would:

1. Target and potentially lead to challenges that the birth of the four million babies born in this country annually.

2. Increase administration, bureaucracy, and legal expenses for the parents of all children born in this country.

3. Necessitate the creation of a massive federal bureaucracy to track every person’s citizenship, as birth certificates would no longer suffice.

4. Per #2 and #3, cause babies, including citizens, to lose or have access to critically important benefits and services delayed at birth while awaiting parents to find and submit all necessary paperwork and for the new bureaucracy to ascertain the citizenship of four million children annually.

5. Create the need for some form of national identification card for every single America, which is something that conservatives and libertarians have strongly opposed in the past.

6. Paradoxically, produce an increase of up to 13 million more undocumented immigrants by 2050.

Gerson concludes:

Trump and his allies are also radical in their determination to turn the brown children of illegal immigrants into criminals on the day of their birth.

This is not the equivalent of an argument about the feasibility of a continent-wide wall, which is a contest between wisdom and stupidity. The debate between bloodline and birthright citizenship is a measure of how you view and value a crying child in a crib in some Texas hospital, born to parents without papers. You can regard that baby, as Trump does, as illegitimate and unwelcome — as another “illegal” of the wrong pedigree and the wrong color who will be a drain on national resources.

Or you can view a child born in the United States as a potential worker, a potential innovator or professional, a potential church member and volunteer, a potential father or mother, a potential taxpayer, a potential voter, a potential president. And as a full and equal citizen. According to the Constitution.

We subscribe to the notion that we should cherish and protect every child. Moreover, it is in all of our interest to do so because children are critical to America’s future success. However, that will only occur if we, as a society, support and invest in our babies and children and don’t seek to round them up, deport them, or permanently cast a chunk of them into the shadows as stateless non-citizens.

Our country should firmly reject the idea of changing birthright citizenship protections as both un-American and anti-child.

The President said he wanted this election to be a referendum on him. Well, voters are responding. I will just say again that his birthright citizenship stunt is going to cost the GOP several seats they’d have otherwise kept.

 — @EWErickson

One way to do that is to vote tomorrow for candidates that vow to protect all children. #VoteKids

For more information on the history and legal issues related to this issue, see this paper by Professor Epps.