Editor’s note: University of Illinois labor and employment relations professor Michael LeRoy is an expert on immigration and employment law. In an interview with News Bureau business and law editor Phil Ciciora, LeRoy discusses the implications of President Trump’s bid to potentially end birthright citizenship in the U.S.
Why did Congress pass a birthright citizenship law?
After the Civil War, Northern lawmakers had a basic choice: Do we enact laws to end slavery, or do we go beyond and enact laws to achieve America’s ideal that “all men are created equal”? They said yes to both propositions, and part of this idea included birthright citizenship.
We know this because they said so in a Senate debate in 1866. Illinois Sen. Lyman Trumball proposed an amendment to ensure its meaning was as broad as possible. He said: “The child of an Asiatic” – he’s referring to so-called “coolie” laborers, basically indentured servants from China – “is just as much a citizen as the child of a European.”
In adopting the 14th Amendment, Congress unambiguously meant for the children of these immigrant workers to have birthright citizenship.
But that debate doesn’t seem to address the main argument of immigration critics, who say that birthright citizenship is “subject to the jurisdiction thereof.” What does that particular clause mean?
Congress meant that ambassadors and official visitors from other nations who were subjects of their own nations could not have children in America and claim a right to U.S. citizenship for these children born on U.S. soil.
Where did the idea of birthright citizenship originate?
It is an ancient concept from English common law. In the U.S., the 1898 Supreme Court decision in United States v. Wong Kim Ark, which ruled 6-2 that the children of Chinese laborers automatically became U.S. citizens, said that the “fundamental principle of the common law with regard to English nationality was birth within the allegiance … of the king.”
The key expression in the decision is all persons born within the king’s allegiance. That is the basis for the wording of the birthright citizenship clause.
President Trump has said the U.S. is an outlier in granting birthright citizenship. Is that true?
It’s not true. Canada and Mexico, for example, also grant birthright citizenship.
Can citizenship be stripped from a U.S. citizen?
Yes, although it is rare. It happens to people who are naturalized and who have falsified documents. It happens to naturalized citizens who participate as members in terror groups and to people who have a dishonorable discharge from the military. Again, these cases are rare. But at no time has it ever applied to a birthright citizen. President Trump appears to be interested in making that happen.
Based on President Trump’s comments, who could potentially lose their citizenship?
That’s a disturbing question, and it’s a wide-open one. A narrow order would strip citizenship to people born within nine months of their mother’s illegal entry to the U.S. A broader order would apply to participants in the Deferred Action for Childhood Arrivals program, many of whom are now in their 20s and have their own children. Under birthright citizenship, those children are automatically U.S. citizens.
Given the president’s recent efforts to strip DACA recipients of legal protection from deportation, it is reasonable to assume that his order would target them as a class of people to lose citizenship.
What are the consequences of losing citizenship?
A person cannot vote in federal and most local elections unless they are a citizen. But the bigger consequence is deportation. The question for many people who were born in the U.S. and then stripped of their citizenship by this new order would be: Deported to where?