Legal scholars and civil liberties groups say Trump’s order, which seeks to reinterpret the 14th Amendment in an effort to prevent migrants from crossing into the United States to have U.S. citizen children, is illegal, and 22 states and D.C. have joined legal challenges to it. Through the order, the Trump says it wants to deny automatic U.S. citizenship for children born to undocumented immigrants and foreign visitors. “Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement.
The Supreme Court on Thursday held a session reviewing a case involving Trump’s effort to end birthright citizenship. The judges are not considering the constitutionality of his order, but instead are looking at his administration’s request for judges to lift injunctions imposed by lower-court judges that have temporarily blocked the policy from taking effect.
Trump has falsely claimed that the United States is alone in offering birthright citizenship; in fact more than 30 countries do, including Canada, Mexico and many Western nations with a colonial history. More than 20 countries have reversed or rolled back their policies. “It has been challenged many times by countries pressed by immigration,” said Graziella Bertocchi, an economics professor at the University of Modena and Reggio Emilia in Italy who studies the effects of immigration and citizenship. “Trump is not the first.”
What to know:
- Birthright citizenship, or jus soli, is a right enshrined in the U.S. Constitution that automatically grants citizenship to any person born on U.S. soil, regardless of their parents’ nationality.
- Trump’s order stipulates that his administration will no longer recognize automatic citizenship for children born on U.S. soil to parents who lack legal status, as well as children born to noncitizen parents who are in the country on temporary work, student or tourist visas.
- The majority of countries with unconditional birthright citizenship are in the Americas and the Caribbean, their policies a legacy of colonial times. French demographer Jean-Francois Mignot has written that, upon independence, the new countries allowed birthright citizenship to attract European immigrants and retained those policies to this day.
- All Central American countries have birthright citizenship, in addition to the United States, Canada and Mexico, according to the Global Legal Research Directorate of the Law Library of Congress: Guatemala, Belize, El Salvador, Honduras, Nicaragua and Panama. Costa Rica has birthright citizenship, but it requires registration.
- Most of the Caribbean also has birthright citizenship: Barbados, Cuba, Dominica, Grenada, Jamaica, Saint Lucia, Antigua and Barbuda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, and Trinidad and Tobago.
- In South America, 10 of the 12 countries have birthright citizenship: Brazil, Chile, Argentina, Venezuela, Ecuador, Peru, Bolivia, Paraguay, Uruguay, and Guyana.
- Pakistan in Asia has birthright citizenship, as do Lesotho and Tanzania in Africa and Tuvalu and Fiji in the South Pacific.
The origins of birthright citizenship
The history of birthright citizenship in the United States differs from other countries in that it was codified almost a century after the country’s founding in the 14th Amendment. The Naturalization Act of 1790 applied to only “free white persons,” but the 14th Amendment that ended slavery in the country also established citizenship for freed Black Americans, as well as “all people born or naturalized in the United States, and subject to the jurisdiction thereof.”
The Supreme Court upheld this right in 1898 when it ruled that Wong Kim Ark, who was born in San Francisco but had been denied reentry to the United States after a trip abroad because of his Chinese descent, was a U.S. citizen.
However, the U.S. adopted its jus soli policy from the United Kingdom, whose practice of birthright citizenship grew out of feudal traditions that assigned serfs born on a lord’s land to that specific lord, Bertocchi said.
A number of European countries reversed their stance on jus soli after World War II, Bertocchi said, with much of Europe now practicing some form of jus sanguinis - citizenship through blood. The United Kingdom changed its laws in 1984 to stipulate that a child born on British soil was a citizen only if a parent was a legal resident or citizen of the United Kingdom. Ireland followed suit in 2004, allowing for individuals abroad to claim citizenship through an Irish-citizen parent or grandparent.
What happens when such policies are reversed?
There have been few studies on the effect of reversing or rolling back birthright citizenship, Bertocchi said, and little agreement on the economic, cultural or social impact of such a policy change. However, she said studies on countries that have done the reverse and loosened their citizenship restrictions - rolling back jus sanguinis as Germany did after the fall of the Berlin Wall, for example - had found the effects to be overall positive for the immigrants. “They’re more likely to become educated, to participate in the political life,” she said.
Most countries reversed course amid rising concerns around immigration, and the oft-repeated narrative that women were entering the country to give birth and get their children citizenship, Bertocchi said - a practice that Trump has referred to as “birth tourism” - though it’s unclear how often this happens. Around the world, moves to end jus soli have been criticized as xenophobic and cruel to immigrant families. The decision of the Australian government to deport a Tamil family back to Sri Lanka - two refugees and their two young daughters who had been born on Australian soil while their parents awaited a decision on their asylum claim - was met with public outcry. The family spent years in immigration detention before they were ultimately granted permanent visas.
The Dominican Republic’s decision to reverse its birthright policy resulted in chaos: The country’s Constitutional Court had ruled that the policy change applied to anyone born after 1929, a move that left 200,000 Dominicans of Haitian descent stateless. While Trump’s executive order states that it will not be retroactive and will only affect those born within the United States after 30 days from the date of the order, immigration rights’ advocates are concerned that this order is only the start.
“This opens the door to a principle that says that the president gets to decide who is subject to the jurisdiction of the United States and who is not,” said Martha S. Jones, a legal historian at Johns Hopkins University and the author of “Birthright Citizens: A History of Race and Rights in Antebellum America.”
The executive order sends a dangerous message, Jones said. “The message is that we continue to harbor questions and skepticism about whether you belong,” she said. “The message is … if you believe yourself to be an American, you are going to have to fight for that.”
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Ann E. Marimow and Sammy Westfall contributed to this report.