CHAMPAIGN, Ill. — President-elect Donald Trump’s sweeping immigration reforms call for an end to birthright citizenship. But can a president unilaterally eliminate a long-standing constitutional right via executive order? Michael LeRoy is the Labor and Employment Relations Alumni Professor and an expert who studies immigration law and labor issues at the University of Illinois Urbana-Champaign. He spoke with News Bureau business and law editor Phil Ciciora about birthright citizenship.
President-elect Donald Trump campaigned on a promise of eliminating birthright citizenship on his first day back in office. Is that possible?
Birthright citizenship was enacted as part of the 14th Amendment to the U.S. Constitution, which was ratified in 1868. It says: “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.” “All persons” born in the U.S. means everyone born in the U.S., not just some people.
No president has the authority to eliminate or modify a constitutional amendment. Is it possible that the new president will issue an executive order to this effect? Yes, but such an action would be blatantly unconstitutional.
Is birthright citizenship a “loophole” for undocumented immigrants, as the incoming president argued on the campaign trail?
The U.S. Supreme Court took up this issue in 1898 in U.S. v. Wong Kim Ark, involving a young man born in the U.S. to Chinese immigrant parents who had no American citizenship and were subjects of the Chinese emperor. Wong returned to visit his family in China but during his return voyage, the U.S. passed a law that cancelled all American passports stamped in China. He sat in a ship’s brig until his lawyers argued before the Supreme Court that he was a birthright citizen and could not be thrown out of the country of his birth, regardless of his parents’ noncitizenship. The Supreme Court ruled in favor of Wong.
So, no, birthright citizenship isn’t a loophole. It’s a fundamental right to all people born in the U.S.
President-elect Donald Trump has also argued for “denaturalizing” citizens. What does that mean and what would it entail?
Under extremely limited conditions, U.S. laws allow denaturalization — also called citizenship stripping. These include running for political office in a foreign country; entering into military service in a foreign country; applying for citizenship in a foreign country with the intention of giving up U.S. citizenship; committing an act of treason against the U.S.; or committing a very narrow set of crimes.
These conditions are set by laws enacted by Congress, not by unilateral action of a president. When a person is stripped of citizenship, they immediately become subject to deportation, even if they have no connection to another country. In a word, they become stateless.
Conversely, as the German-American historian and philosopher Hannah Arendt once noted, “Citizenship is the right to have rights.”
Overall, how does Trump’s second term threaten immigrants?
It’s one thing to deport migrants who are here illegally, though even that will likely cause serious labor shortages in construction, service industries, agriculture and certain kinds of manufacturing jobs in tough working conditions that don’t appeal to most Americans. But Trump is also talking about choking off legal immigration, even for skilled professionals such as medical specialists and computer engineers. His plans amount to a brain and brawn drain for American employers.
What are the historical origins of birthright citizenship?
The Roman emperor Caracalla issued an edict in 212 A.D. to grant citizenship to all free men and women, including to people born anywhere in the vast empire. He did this to spread the burdens of taxes and required public service that were falling too heavily on native Romans. Many of the new citizens had dark skin and spoke different languages. None of this mattered to Caracalla, because he thought that by expanding citizenship, Rome would expand its hemispheric economy and influence.
President-elect Trump’s administration seems to be following a different model, one that shrinks the citizen base. But history shows that Caracalla’s edict created economic and political stability for more than 250 years.
