Often you hear -especially if you are a member of the elite in a developing country- about a friend or an acquaintance who abruptly travels to the United States and returns in 3 weeks-time holding a new born child -and more importantly- holding the child’s Navy-Blue American Passport.
Are these days over?
The current US Administration has consistently expressed its discontent with such practices and vowed to take measures to stop -what it labelled- A form of abuse of the US Immigration System.
Such promises were affirmed in the recent comments made by the US President in which he claimed that he can pursue the abolishment of the Constitutional citizenship birthrights by issuing a Presidential Executive Order without having to amend the US Constitution.
Setting aside the political angle of the issue, the matter still raises legal and policy debates.
Supporters of the status quo argue that citizenship birthrights are essentially engraved in the Fourteenth Amendment of the US Constitution 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,” (U.S. Const. amend. XIV).
Therefore, any amendment of such rights must be completed through a tedious legal process involving the Congress and the President to work-out a Constitutional change.
The supporters of the President’s approach are of the opinion that the Fourteenth Amendment did not address matters such as citizenship for undocumented/illegal immigrants, and, therefore, such matters may be the subject of a Presidential Executive Order. The historical background for the passage of the Fourteenth Amendment is critical for the analogy of such birthrights.
The said Amendment was ratified in July 1868 by a fully controlled Republican Congress. During this post-Civil War Era, the objective of the Amendment was to re-enforce the First Amendment “Privileges and Immunities” Clause and prevent States from depriving the then newly freed slaves from their rights of “Life, Liberty and Property” as well as their citizenship rights.
Legal experts in support of such rights view that the Supreme Court consistent interpretations of the wording of the Fourteenth Amendment, the Government practices and Congressional Actions shaped a citizenship birthrights’ friendly legal environment.
Accordingly, a Presidential Executive Order repealing this right would be cumbersome.
On the other side, supporters of the repeal counter-argue that the wording “and subject to the jurisdiction thereof”, opens the door for a more conservative and narrow reading of the Fourteenth Amendment claiming that it does not address per se citizenship birthrights and find their vindication in the limits afforded by the historic background surrounding the ratification of the Fourteenth Amendment.
Policy makers tend to equally argue on the rational behind adopting citizenship birth rights.
Supporters of the policy put forth the classical arguments about the moral values and universal responsibilities of the United States as well as being a “Role Model” leading country in respecting human rights and this should inherently include birthrights’ citizenship.
On the contrary, there are Congressmen and legal experts who cite examples of developed countries -mainly in Europe- such as the United Kingdom which, decades ago, had abolished or set residency requirements to grant such rights.
Despite all such arguments for and against birthrights, the question will remain, will the Administration live-up to its promise and issue such Executive Order?
If so, what would be the consequences?
The experience with the current Administration has manifested a firm commitment to fulfill its promises despite the legal or policy concerns.
The matter in our view will climb its way up to the partially reconstructed Supreme Court to be resolved considering all the above arguments and current developments.