In 1868, the 14th Amendment to the Constitution was ratified, guaranteeing citizenship to all individuals born in the United States. The Civil War had just ended, and the Amendment was created to give freed slaves citizenship.
Last week President Trump indicated that he will undertake an effort to end “birthright citizenship” by executive order.
Executive orders have been used by President’s throughout history, in some cases, to supplant laws that would otherwise be impossible to change with the makeup of the legislative body at that time.
Think back to President Obama and DACA in 2012. The DREAM Act had suffered many defeats in Congress, and although Democrats had a majority in the Senate, the House was controlled by Republicans. There appeared to be no immediate future for DREAMERs. So President Obama used executive power to create DACA. President Trump recently attempted to terminate it, also through executive order, which is still being litigated.
DACA was a different situation than birthright citizenship, though, because DACA circumvented (lack of) legislation in an area that the Executive has some power over; an executive order on birthright citizenship would circumvent a constitutional amendment, and would almost immediately be stopped by federal courts.
What would it really take to end birthright citizenship?
Article V of the Constitution requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. It would then be up to the states to approve a new amendment, with three-quarters of the states voting to ratifying it.
President Trump doesn’t have the votes to change the Constitution – and he knows it. Presumably, he also knows that an executive order ending birthright citizenship would not survive.
So is this just another bomb-shell to fuel Americans to turn-out at the polls on November 6th?
Maybe.
Nevertheless, in today’s climate it is a topic that will be hotly debated in America, and even around the world.
The notion that your geographic location at birth dictates your citizenship is an interesting one. Many countries confer birthright citizenship – Canada, Argentina, Brazil, and over 20 others. These countries have historically sought to attract more immigrants, and there were times that the 14th Amendment helped to attract immigrants to the U.S. who wanted a better life for their (future) children.
Attracting immigrants is not in the interest of the present administration, evidenced by the “Buy American, Hire American” platform visible on seemingly all U.S. federal agency websites, including the immigration agency (!?). President Trump is even planning to terminate the Diversity Visa, which allows individuals from certain nations to participate in an annual “lottery” to be selected for a green card. Whether right or wrong, this is the climate in which the ending-birthright-citizenship issue is playing out.
Supporters of ending birthright citizenship take the position that “times have changed” since the 14th Amendment was ratified. There is some truth to that.
Today there exists an industry for “birth tourism” in the United States. Expecting mothers from around the world pay fees to special “hotels” that offer lodging and medical care to give birth on U.S. soil so their children automatically gain U.S. citizenship. This wasn’t part of American life in 1868. Neither was the influx of millions of people entering the U.S. unlawfully to live, work, and have children (who, in some cases, later sponsor their parents for residence).
These, and many others, are the issues facing America today, and this is what the President is attempting to address.
Do the problems of today call for an outright end to birthright citizenship, and repeal of the 14th Amendment?
Maybe that’s too drastic.
The only Amendment to ever have been repealed is 18th Amendment prohibiting production, transportation, and sale of alcohol, which lasted only 13 years from enactment in 1920 to repeal in 1933. All other provisions and amendments have withstood the changing landscape of America over time.
The 14th Amendment is part of the framework of the United States, and can continue to confer citizenship onto future generations even in today’s America… with some legal limitation.
How can we try to fix it?
It is well established that the law may limit constitutional amendments. For example, while while the First Amendment confers the right to freedom of expression, the law prevents speech that incites, and is likely to produce, lawless action, among other exceptions. While the Second Amendment confers the right to bear arms, the law prevents convicted felons from exercising this right. There are many examples of limitations with most of the Bill of Rights.
Limits on rights may be valid if they pass scrutiny.
Laws that limit constitutional rights are often challenged in state and federal courts, and the courts apply one of three levels of scrutiny to decide if such right may be limited – strict scrutiny, intermediate scrutiny, and rational basis review.
A law, for example, limiting birthright citizenship to to individuals whose mother is legally present in the U.S. in a classification other than “tourist,” would be a law applicable to a “suspect classification” of people, as it would be based on national origin, and would therefore be reviewed under strict scrutiny. To pass strict scrutiny, the law must:
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Be justified by a compelling governmental interest (necessary or crucial);
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Be narrowly tailored to achieve that interest; and
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be the least restrictive means for achieving that interest.
Can a case be made that there is a compelling government interest to limit citizenship to those born in the U.S. to legally-present mothers?
This administration would likely argue that it would deter some individuals from entering the U.S. unlawfully, and, when combined with limiting public education to individuals lawfully present, would deter individuals unlawfully present in the U.S. from staying in the country.
Not everyone would agree that a limitation as described would qualify as a compelling government interest, while others from either side of the aisle may see it as a viable way to address one of the issues facing Americans. The question is, what side would the Supreme Court fall on?
It is possible that a such a law could be the first to limit the 14th Amendment’s birthright citizenship clause. With election day just 1 day away, that possibility could change drastically, unless this is an issue on which Americans can find middle ground – a difficult prospect these days.
One thing remains fairly certain – Congress will have to be the one to act for there to be any changes or limitations to a Constitutional Amendment.
David Vyborny, Occam Immigration
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Share your thoughts below on whether birthright citizenship should be kept, ended, or “fixed” by a law, and whether there is a compelling government interest in a limiting law.
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