It’s everywhere now: Trump wants to abolish birthright citizenship, or jus soli. The UK, as Americans are now told all day long, has done it in 1983 (spoiler: it’s complicated). “Most countries are getting rid of it”, supposedly. Is “birthright” citizenship an anachronism from the bygone days of Ellis Island? What other ways are there to go about it, and can it be done in the US without changes to the 14th Amendment? What does citizenship even mean in the global world? I feel like I have already written some about it on this blog before, but here we go again.

“Anchor babies” – are they real?

It is true that “anchor babies” are not a thing in the US, really. Well, ish –not in a sort of way that Trump, or most of the members of the general public, envision. The baby needs to be 21 years old  before she or he can — drink, of course – but also, before she or he sponsor anyone, eg a parent, for immigration, and there is a caveat still  – an illegal entrant cannot be sponsored even then. Once you enter the UK illegally, there is virtually nothing that can be done, especially if you also stayed there illegally long enough to have a baby and trigger a ban.

So “anchor babies” aren’t really a thing in a population of illegal immigrants — there are, of course, US citizen (USC) babies in that population, who grow up with illegal parents and often likewise illegal (potential “DREAMers”) older siblings. Sometimes those US citizen babies follow their families when they are deported form the US, but once old enough they can, of course, return — bringing with them, one can imagine, all of the gratitude they will have acquired for their homeland based on how it treated their family, probably traumatising them in childhood and altering it forever.

What is the fuss about, then?

But “anchor babies” are still a thing, in a sense,  in the world of legal migration. People of all sorts have children in the US, of course – and quite often these are people whose futures do not necessarily lie here. Not because they are going to be deported — but because they are in the US temporarily, say, to work, or study — then their visas or whatever will run out, and they will move on to another part of the world, along with their USC child.Last but not least , of course, birth tourists — people from Russia or China or anywhere in the world, who come to the US to give birth only so that the children would be citizens. Are they looking to benefit themselves in 21 years? Not really – for most people’s life planning, this is way too remote. But they are certainly looking to benefit that child. The child that will be able to go to college in the US, move there as an adult, have a career, get student loans if needed.

Or, let’s say, security clearance?  Nowadays people move away from you in a elevator when they realise you are “from Russia”. But a child born in Miami or New York City, no matter to whom and under what circumstances, becomes an adult whose foreign origins are erased and identity is free of suspicion.

Families that include one US parent, or those who have, like ours, spent years in the US, may raise their children overseas — like I raised my US-born daughter – on US movies, US history, culture and worldview, and tried to instill American patriotism in them. Even in cases where the parents themselves share that culture and that patriotism, no small fit to do in respect of a country the child does not remember themselves. My middle daughter left the States when she was 3, and did not return until she was 12.  She had no idea what the US was actually like — no personal memory of it. From the airport, I took her straight to the house in New Jersey that we used to live in at the time when she was born. She stood in front of it and said in disappointment: “This looks like anywhere else I have ever been”. Which it did. Clearly, I had been dramatically overselling the whole thing for 9 years ))

Now imagine a child born to a “birth tourist”, a parent often herself not well versed in English and having little idea of a culture or history of the country they are giving birth in.  Often this will be a child that has no connection with the United States at all, except for their passport. They do not talk like Americans, they have never heard of Green Eggs and Ham, they cannot list states and capitals. They have a passport, but they are less American than even many long-term residents who arrived here as adults.  Their allegiances do not lie in this country. They do not FEEL American. They will have no affinity with this strange and difficult to understand, complex, vast country. No social networks, no street they grew up on. Nothing. In fact, if indeed they grew up in Russia or China, mono-racial and homogeneous and countries, America probably scare the sh*t out of them. I know, it certainly did scare that out of me one day in 1996 — I was 21. Speaking very good English and having been to London, Berlin, Amsterdam and Prague before that, did not help.

It’s not about whether or not they will sponsor anyone for immigration at 21. It’s about themselves. Birthright citizenship proponents think about illegal immigrant children, and their societal prospects, but that isn’t about those children, really. Notorious as abolition of JUS SOLI has been in the UK, we — the UK – DO actually give citizenship to UK-born children of illegal immigrants, or ANY child born in the UK — just not immediately. We do it when they are ten years old, if they still live in the UK. Why? Because we want to give it, specifically, to children who grew up in the UK. Who have bonded with the country and its culture and associate with it. The children “whose future clearly lies in the UK”, we call it. Just like the mafiosi in The Godfather did not “do violence in their mothers’ neighborhoods”, most people who are not crazy do not blow up their own home countries.

No one is against, by and large, a kid who was born and grew up somewhere to be a citizen, subject to some qualifiers, usually — that it does not legalize, en masse, a bunch of their otherwise illegal relatives, and that they have some connection to that country. So, what sort of qualifiers work or don’t in other countries?

The UK and Ireland

These are both sort-of-developed countries that had universal citizenship for all those born there, and now do not. In fact, rather indiscriminate grants of Irish citizenship to everyone born in Northern Ireland even after UK abolished automatic universal British citizenship in 1983 (for its own reasons), had given the Republic of Ireland quite an upper hand in the fight for the hearts and minds of the Northern Irish, in the years when the troubles were still raging. Anyone who would qualify to be British at birth in NI is Irish even today – but ROI policy extended further, it basically said ANYONE born there, even to two illegal parents, was Irish.

Development of immigration-related jurisprudence under ECHR pretty much killed birthright citizenship in Europe. The last bastion, Ireland, fell in 2005  when European Court of Justice started to rule on things like, Chen and Zambrano, giving, effectively, legalization to otherwise illegal parents of these children. None of those considerations are applicable in the United States, of course. Further, abolition of universal jus soli did not really save the UK from legalisation of immigrants, not for long anyway – as  ECHR / ECJ judgement-motivated provisions of the Immigration rules created things like a “7-year child rule”, which experienced a lot of iterations but is not dead.

So, fighting birthright citizenship for children made no sense, since even non-British children became capable of anchoring in illegal parents just 7 years later. Yet, technically, a British child today can anchor in a non-British parent, and even on a 5-year route — and one does not need to wait any number of years in this case, you can apply based on a baby.

Therefore, a question of “who is British at birth”  makes sense. We do have British citizenship for kids born in the UK, if “their future lies here” – in other words, if they are born to (at least one) British parent or a parent with a right of permanent residence or indefinite leave to remain (leaving aside for a meaning difficulty of proving that in some outlier cases). In other words, where there is no danger of creating a situation where a deportation of a parent would only be halted by the sponsorship of that same child. This is because a UK-born British child that has never been abroad, again, by virtue of ECHR jurisprudence, cannot be reasonably expected to leave the EU, so parents would always attach. Children born in the UK whose parent(s) acquire ILR or permanent residence later, can be registered as British citizens as a matter of right (“by entitlement”) at that time.

Now, what about children growing up in the UK illegally, if they were born to illegal parents? I must say, part of the thing is that neither UK nor Ireland have a large population of illegal immigrants. It is very hard and rare to enter illegally and those numbers are low. People do “fall out of status” through overstaying or refusals, but we are not talking about millions of people like in the US.

The thing is, however, that children born in the UK do not require leave to enter or remain, if they have not LEFT the UK since they were born there. Being born is not illegal. They are, effectively, not subject to immigration control. There are some inconveniences to their non-Britishness, mainly having to do with inability for parents to claim child benefit or social assistance that may, for children with families, be otherwise generous. But they are not illegally in the UK per se and there is, by the way, no need to apply for them unless they will travel.

Further, they have an ENTITLEMENT to be registered as British when they turn 10 – if they are still living in the UK (and havent been absent more than a certain length of time overall — if they had some leave, usually that mirroring their parents). In other words, if they acquired that connection with the country, grew up there. Consider it their home. This is a form of jus soli deferred, if you will — it gives them citizenship, in fairness, in time for when they will need it, perhaps for further education or whatever. It might even be in time to permanently anchor a parent — a kid registered at ten, a parent on a 5-year parent route will get settlement before the kid turns 18.  So it is perhaps not fair enough to say that UK-born kids do not have birthright citizenship. it is just, hm, deferred — and of course you have to pay a(n extortionate) fee to register..

In Ireland, since 2005, similar provisions state that all children born in the Republic OR Northern Ireland ARE Irish citizens, if their parents are settled in their respective country (like in Britain) OR lived there legally for some number of years (I think) prior to the child’s birth. The requirement that can be met in a number of ways. I do not know about subsequent registration. But either way it is unfair to say there is no jus soli citizenship in either country. I have a number of clients from Northern Ireland whose kids have Irish passports even where parents’ status is in some sort of contention.

The birthright citizenship was envisioned and enshrined in the Constitution by the founding fathers, right?

Wrong. At the time of the Founding, of course, most of those living in what was to become the US were the subjects of the British Crown. That was the point of the Revolution. But the Revolution freed the colonies – multiple –  rather than established one country. Initial states were independent – you could – and had to, if you were an immigrant – become a citizen, say, of New York. US citizenship wasn’t a thing.

Then of course there was a constitutional convention, that established one country and Washington was elected president. The constitution did not convey any birthright citizenship of the United States and stayed largely silent on the subject. In fact the whole idea of the federal government taking over any sorts of states rights and representing the states collectively — say, in collection of import duties — was all very painful then, as it was. There was no military, and Alexander Hamilton was famously fighting to create and keep alive the Federal bank and post service. How did one become a citizen, or a notion of citizenship of the United States as opposed to individual states, wasn’t on anyone’s mind. Until, of course, they realised that it was necessary to figure out who was a citizen and who wasn’t, because Federal elections were now taking place.

It would be wrong to say that immigration as such wasn’t on anyone’s mind then — it was, but in a sort of Trumpish paranoid way. Everyone was afraid of British spies and revanche,  and Europeans telling everyone what to do, or voting when they weren’t supposed to  (nevermind that the Revolutionary war was won with the hefty assistance from the French — by then, the Revolution had happened in France, and its cruelty, chaos and disorder scared the Founding fathers). No one wanted such things any more than the monarchist revanche — by and large, everyone was afraid of foreigners of all sorts. Initially in 1790 the Naturalisation Act was passed to note that one had to live 2 years in the United States to become a citizen — to prevent, in modern parlance, foreign countries from dispatching people en masse to steal elections. The Act specified that only white people could become citizens.

One has to only read up on Alien Sedition Acts, passed during the Adams administration, to get a sense of how immigrant-friendly exactly the land was then (hint: not very). In less than 10 years, Alien and Sedition acts included a new naturalisation act that increased residence requirement to 14 years — that, during the time when mid-40s was still the average life expectancy. Those who lived in to their 60s were revered geriatrics. People born here were assumed to be citizens, I suppose – but nothing said that anywhere. The sort of problems in context of which we actually do ask who has birthright citizenship or not, did not yet arise then. Blacks were not considered citizens at any age, for instance, no matter where they were born, but this was a touchy subject and it didn’t say THAT anywhere either (except of course for the infamous detail that early gerrymandering counted slaves as 3/5th of a person for the purposes of counting how many representatives the state were to have).

Immigration en masse of large ethnic groups did not really happen until the mid-19th century, when the Gold Rush happened, and then industrialisation, building of railroads etc etc created big projects on which large quantities of immigrant labour were required.The Chinese arrived in large numbers on the Pacific coast, for instance. I have news for you — not one considered them, or, their children, citizens –  either. In fact, there very quickly were too many Chinese, and there were a whole sorts of strange laws and regulations trying to deal with their immigration status, re-entry rights etc — these are NOT pleasant things to read. It was not a good time to be a Chinese laborer in the US and the US was by and large not fair to any of them. Further Reading – Chinese Exclusion Act of  1882 — way after the Civil War, and actually just before the 14th Amendment was passed. (In general terms, Chinese people were no longer allowed to enter the blessed land of the free from 1882 to… take a guess? 1952!  When racial discrimination finally became illegal. Middle of the 20th century. After the World War II.)

What is the 14th Amendment everyone is talking about?

The 14th Amendment is one of the so-called “Restoration Amendments”, aimed, principally, at codifying the consequences of the Civil War. Citizenship of immigrant babies was not on anyone’s mind at the time. When they put in the words “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”, they did not think about immigrants at all. The words were there to underscore the newly acquired citizenship right of former slaves, the African-Americans. It is under this Amendment that important civil rights battles were later fought in the courts, for instance the Brown v Board of Education case that had integrated the schools (almost 70 years later – around the same time the Chinese were once again allowed in).

It is, it seems, only afterwards that people started to realise that numerous children had been born to the Chinese in the United States as well, and that, on its face, the Amendment appeared to apply to them. We are in the mid 1880s now.  When Chinese exclusion act passed, the government for the first time started to figure out that some of the Chinese it was gearing to refuse landing, were in fact returning Chinese who may have been born here and have a claim to citizenship. Interim rule of the time — one of which today’s votes suppressors would be proud – demanded that each such person produce TWO WHITE PEOPLE as witnesses that they were who they say they are. This did the trick – most Chinese people did not know any white people personally, let alone those who would bother.  Hundreds became stranded overseas.

Enter (no pun intended, since he didn’t actually enter but rather was barred from doing so) a dude named Wong Kim. In his case based roughly on above set of facts (US-born but did not know any white people), the Supreme Court ultimately ruled, in a highly contested case that attracted a lot of opposition from the angry public, which claimed that such an effect of the 14th Amendment would be “unintended”, that he was, indeed, a citizen. So this is how the question was, as they now say, “settled”. 130 years ago.

So which part of the 14th amendment does Trump not understand then?

The one where it says “subject to the jurisdiction thereof”. No one really understands that. One thing most seem to agree on – that residence in one’s country as a diplomat does not give rise to naturalisation rights or citizenship of children. Beyond that, no one knows — since, at the time of Wong Kim, by and large, there was illegal or legal ENTRY rather than any iterations of status beyond that. There was no INS, USCIS etc. You were THERE – you were probably not there illegally.  No one ever doubted legal presence in the country of Wong Kim’s parents, since Chinese entered and were allowed to settle freely at the time back when they came in. So it is not, really, fair to say that the Supreme court settled this very question in Wong Kim. It did not.  Illegal immigration — eg smuggling in of people otherwise not allowed to enter – became a thing rather going forward from the 1880s.

So, are today’s illegal entrants “subject to jurisdiction thereof”?  What about legal entrants on expired visas? Permutations could be indefinite. So we assume that they are. The Supreme court did speak on tangent subject — such as, to whom do Constitutional protections — due process rights — apply? It turns out, to US citizens everywhere and to everyone in the United States (infamously, not to travelers denied entry). This has to do really with protections, rather than rights — for instance, as a non-citizen,  I would have due process rights in case someone were trying to arrest me for murder – but I would not have many other rights that come with citizenship and also are enumerated in the constitution. So, one can argue, that Supreme court musings as to constitutional protections are not exactly the same as meaning of the words “jurisdiction thereof”.

What is, then? Well, if I commit a murder in the United States, it can get me, I am subject to their jurisdiction, wherever I am here legally or not. But if the Russian Ambassador commits murder, he will enjoy diplomatic immunity. So, he will not be subject to “jurisdiction thereof”.This is the gist of what proponents of birthright citizenship regardless of parents’ status are going for. This is the widely held belief and understanding.

But there are many “buts” here that my fellow liberals of course fail to see. Firstly, diplomatic immunity as it exists today took hold in the 1960s and did not exist in Wong Kim times. Secondly, many sorts of diplomatic staff to whose children, we concede, birthright citizenship does not apply, may however be arrested, detained and sometimes even prosecuted for serious felonies. It is all subject to international agreements.So all of those similar sounding things are not necessarily the same thing.

It is not necessarily the case that this is what “jurisdiction thereof” means exclusively. I can see a theory, which may or may not be plausible, for instance, that jurisdiction as was understood in the 19th century had to do with duty to pay, and ability to collect, taxes. Technically everyone has that duty – but in practice,it applies only to those who have a taxpayer ID and about whom the government knows. I happen to agree that, all told, illegal immigrants are probably all “subject thereof ” and the birthright citizenship applies to their children — that is, probably, what the Supreme Court would (will) say, if asked. But will anyone ask?

So, can Trump really repeal or amend  the 14th Amendment by executive order?

Of course not, but he doesn’t think he needs to. I can see how this is 100% what the Trump administration will be going for. They are not going after people like me – my daughter was born in the US when I was here on an H1B visa. I am pretty sure they will leave all those who are here in some registered, known to the government legal capacity, to jolly continue on with birthright citizenship as it would be the unconscionable to suggest we are “not subject to jurisdiction thereof”.  But I see how a question may be asked about the children of those living in shadows, who entered and remain illegally and whose presence is not known to the government. And I can also see HOW they are going to ask that question — Wong Kim case taught us that much. They will simply stop issuing passports to kids without proof of parents’ immigration status at the time of birth, like we do in the UK. THAT is the executive action he is talking about, and yes, he can do it.

Activist (or, simply, racist)  local registrars of the Joe Arpaio variety along the border already refuse to issue birth certificates to illegals’ kids. They refuse to do that illegally, but it is very hard to protest since they also turn over to ICE anyone who protests. The parents, they say, do not have ID to be included on a birth certificate. No one know knows whose kids is this, basically. (I recall giving birth in a NJ hospital as a white person, for contrast – I was ASKED by a woman who came over to do the birth certificate paperwork, who I was, and who the father was. The father in fact was at the time overseas and the US authorities were refusing him a visa, but that did not bother anyone, they just wanted a name. No one at any point asked for proof of any of our ID, let alone anything else, the birth certificate came by mail afterwards, and so did the SSN).

When Trump instructs the Department of State to stop issuing those passports, of course, there will be a scandal, ACLU etc will immediately sue, and very quickly we will be in the Supreme Court, which will probably answer the question it did not really answer in Wong Kim. And, we will see if the “unintended consequence” is any more popular today than it was in the 1880s (I am guessing, not really).

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