Donald Trump, the billionaire developer/TV personality, has enjoyed a (surprisingly high) degree of support in his (Quixotic) quest for the presidency of these United States. Commentator after commentator has marveled at his gift of exposing the underbelly of Mr. & Mrs. John Q. American, and poking whatever pisses them off. In terms of offering substantive policy, Trump is notably short. But with regard to engaging in issues that move the political needle, we are watching a master at work.
Perhaps the most controversial elements of Trump’s platform are his views on illegal immigration. In his six-page manifesto entitled “Immigration Reform That Will Make America Great Again,” he describes the diabolical plans of our neighbors to the south to send us their tired, their poor, and their huddled masses yearning to breathe free.
“For many years,” Trump says, “Mexico’s leaders have been taking advantage of the United States by using illegal immigration to export the crime and poverty in their own country (as well as in other Latin American countries). They have even published pamphlets on how to illegally immigrate to the United States.”
His solution? One of eight fundamental steps outlined by Trump is to end birthright citizenship, which is, from his perspective, “the biggest magnet for illegal immigration.” (Please pay no attention to the myriad polls and analyses that say otherwise…) What’s more, Trump doesn't believe that “Anchor Babies” – the crass but popular term for babies born in the United States to undocumented immigrant parents - are actually American citizens. "What happens is they're in Mexico, they're going to have a baby, they move over here for a couple of days, they have the baby. I don't think they have American citizenship and if you speak to some very, very good lawyers and you're going to find they do not have American citizenship," Trump said in a televised interview. "We have to start a process where we take back our country. Our country is going to hell. The parents have to come in legally," Trump said on the campaign trail earlier this year. "Now we’re going to have to find out what’s going to happen from a court standpoint. But many people, many of the great scholars say that anchor babies are not covered (by the 14th Amendment). We’re going to have to find out."
The 14th Amendment: What's he talking about?
Throughout much of the history of this country, the fundamental legal principle governing citizenship has been that birth within the territorial boundaries of the United States confers U.S. citizenship. Birthright citizenship, like a lot of U.S. law, has its roots in English common law, which held that “a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."
This same principle was adopted in large measure in the U.S. Of course, this is how things had always been, but Supreme Court Justice Noah Haynes Swayne adroitly identified another motive: that of building loyalty to this infant nation. "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens,” said Swayne. “Birth and allegiance go together.”
However, during our nation’s formative period, slaves and their children were excluded. This position was endorsed by the infamous 1857 U.S Supreme Court decision, Dred Scott v. Sandford, in which the court concluded that African Americans could not be U.S. citizens. This ruling, decried by anti-slavery activists at the time (and still widely regarded as the Supreme Court’s worst decision ever), was eventually overturned by the passage of the Civil Rights Act of 1866 and the enactment of the Fourteenth Amendment to the U.S. Constitution. Contained within Section 1 of the Fourteenth Amendment is the “Citizenship Clause,” which states, "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."
Sen. Jacob Howard of Michigan, the principle author of the Citizenship Clause, argued that it was “the law of the land already” and that it excluded only “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Others agreed that the children of foreign officials were to be excluded, but there was very little discussion concerning the children born in the United States to parents who are not U.S. citizens. A few Senators asserted at the time that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth, and there is no record of disagreement. Since then, the Citizenship Clause has been interpreted such that children born on U.S. soil, with very few exceptions, are U.S. citizens.
What does this have to do with Anchor Babies?
We all know that the term “anchor baby” is generally, and derogatorily, applied to a child born in the U.S. to a foreign national mother who is not lawfully admitted for permanent residence. However, it is a popular misconception that a child's U.S. citizenship status legally moves the child's relatives on a fast pathway to acquire permanent residence and citizenship.
Federal law prevents anyone under the age of 21 from being able to petition for their non-citizen parent to be lawfully admitted into the U.S. for permanent residence – meaning even under the most accelerated of circumstances, the child's family would need to wait more than two decades before being able to use their child's U.S. citizenship to modify their own immigration status.
Somewhat surprisingly, there has been a growing trend, especially among Asian visitors to the U.S., to make use of "Birth Hotels" to secure citizenship for their child. This is often a means to circumvent the one-child policy in China. These “birth tourists” can spend upwards of $20,000 to stay in swank facilities during their final months of pregnancy, as well as a recuperation month while their new baby’s passport is prepared. And while some might find this practice objectionable, it is not illegal for a woman to come to the U.S. to give birth. Depending on whom you listen to, between 7,000 and 40,000 such births take place in the U.S. each year.
There are other interesting citizenship issues that have arisen in the not-too-distant past. Children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s. These policies were derived out of concern that a flood of illegitimate Korean and Vietnamese children would attempt to claim American citizenship as a result of their parentage by American servicemen fighting in wars overseas.
Okay, how do we handle this?
There are perfectly legitimate reasons to be concerned about illegal immigration, its fairness, and its impact on the economy and our national security. Nonetheless, like so many other things, it is often very easy to identify the problem, and very hard to implement a fair solution. Policymakers should be very worried about the long-term impact of the elimination of birthright citizenship and its potential to create an economic “underclass” in this country.
By most estimates, there are presently north of 12 million illegal immigrants in the U.S. If some/many/most of the children of this population have two undocumented parents, then without birthright citizenship, millions of children would not automatically be – nor likely EVER be – U.S. citizens. But unlike their parents, these children are not citizens of another country, either.
Presumably, if detected living here, the parents could be deported to their home nation. But what about, say, the adult daughter of two undocumented Panamanians living in the U.S.? Is it realistic to deport her to a nation that conceivably she had never been to? Where she likely knows no one, and may not even speak the language? Moreover, looking down the road, what would our national policy be regarding these “unaffiliated aliens” who marry one another, and produce children of their own? It seems nonsensical to hold people responsible for the improper migration of their grandparents, which may have occurred decades before they were even born.
It is possible to envision an America where millions of residents are not citizens of any nation. This population would be adrift – unable to legally work or pay taxes, drive a car, get a license, pay resident tuition, to vote or run for office, here or abroad. It would be a “lost generation,” lacking in educational opportunities, without the ability to meaningful engage in commerce, and with little loyalty to this nation or any other. Would that strengthen our national fabric, or fray it further?
If the goal of this effort is meant to curb illegal immigration, that is an objective few would argue is without merit. But if the result of that effort, inadvertently or otherwise, creates a sizable population unable to engage the American ideal, then is the cure worse than the disease? Lest they be accused of insincerely addressing the issue, Trump and others championing the elimination of birthright citizenship should, at the very least, articulate a vision for assimilating unaffiliated aliens into our American culture.
While perhaps imperfect, birthright citizenship has served this nation admirably, and we end it at our peril, and that of our posterity. I am reminded of the words of Justice Swayne, who said “birth and allegiance go together.” I am also reminded of another, perhaps more well-known saying: “Be careful what you wish for, you might actually get it.”