Birthright Citizenship Set To Emerge as an Issue in Republican Primary

What were our states thinking when they ratified the 14th Amendment granting citizenship to all persons born or naturalized in the United States?

AP/Charlie Neibergall
Governor DeSantis speaks during the Family Leadership Summit, July 14, 2023, at Des Moines, Iowa. AP/Charlie Neibergall

Top-tier Republican presidential candidates are threatening to challenge so-called “birthright citizenship” for children of illegal immigrants in a move that would overturn decades of precedent.

Governor DeSantis drew attention when he said in a press conference that “the idea that you can come across the border, two days later have a child, and somehow that is an American citizen — that was not the original intention of the 14th Amendment, and we intend to force a clarification on that.” 

The 14th Amendment, modifying the Constitution after ratification of the 13th Amendment abolishing slavery, grants citizenship to “all persons born or naturalized in the United States.” It has been the source for American citizenship jus soli, or based on place of birth, regardless of parental immigration status.

President Trump, who, during his presidency, suggested that he would issue an executive order to end birthright citizenship and never did, also says he would end the practice by “making clear to federal agencies that under the correct interpretation of the law the future children of illegal immigrants will not receive automatic citizenship.”

Birthright citizenship is far from a niche issue — the Center for Immigration Studies found that, in 2014, births to illegal immigrants cost taxpayers $2.4 billion, amounting to 7.5 percent of all American births, or 297,000 births. That number has likely increased as the number of undocumented immigrants in the United States has jumped dramatically in the past two years.

Mr. DeSantis, along with more conservative constitutional scholars, would argue that the “original intention” of the 14th Amendment, passed soon after the Civil War, was to ensure citizenship for formerly enslaved African Americans. 

“Were they envisioning migrants, let alone illegal aliens, or was it written about issues stemming from post Civil War?” is the way the director of the Heritage Foundation’s Border Security and Immigration Center, Lora Ries, posed the question to the Sun. 

Defendants of birthright citizenship, though, often point to a landmark Supreme Court case from 1898, United States v. Wong Kim Ark. Wong Kim Ark, born at San Francisco to Chinese parents who were not American citizens, took legal action after he was denied reentry to the United States on the grounds that he was not an American citizen. 

The court ruled that the 14th Amendment affirms citizenship even for “all children here born of resident aliens,” though the opinion does not specify whether the amendment applies to children whose parents are illegal residents. 

A fellow at the Hudson Institute, John Fonte, says Wong Kim Ark provides precedent for citizenship determined by birthplace but tells the Sun that overturning the precedent “would not be a surprise” since the court had only two years before, with all the same justices, issued the notorious ruling in Plessy v. Ferguson, which perpetuated segregation.   

Mr. DeSantis and Mr. Trump are not alone among their Republican rivals in their stances on birthright citizenship. The former ambassador to the United Nations, Nikki Haley, said on Fox News that she is also against birthright citizenship for “the five million people who’ve entered our country illegally.” She  noted, though, that she does not support ending the practice for children of legal residents.

Some of the other candidates, Senator Scott of South Carolina and Vice President Pence, take the position that the policy should be reviewed, though they have not yet explicitly called to end it. Mr. Pence told Politico that the Supreme Court “has never ruled on whether or not the language of the 14th Amendment … applies specifically to people who are in the country illegally,” opening the door for an executive order or federal litigation on the matter.

Another candidate, Vivek Ramaswamy, who has recently polled as the third-place candidate after Mr. Trump and Mr. DeSantis, has also called into question birthright citizenship even for children born to American citizens, saying that “no one born in this country … should automatically inherit the full privileges of citizenship until they earn those privileges.”

If elected, he claims he will pursue a constitutional amendment requiring all 18-year-olds to pass a civics test or spend six months in the military or as a first responder in order to be able to vote and have the “full privileges” that come with citizenship. 

While Senator Scott’s campaign declined to comment on birthright citizenship, Mr. Scott disclosed to the Post and Courier in 2018 that he would be open to reviewing the practice over concerns that the current system “may actually encourage illegal immigration.” 

Immigration still ranks as the third most pressing issue among respondents in a July Harvard-Harris poll, and Ms. Ries, at Heritage, says she is confident it will continue to play a key role in the 2024 race.

“It’s absolutely top of mind, because it goes to national security. It goes to personal security, it goes to jobs. It goes to public schools, crowded schools,” Ms. Ries says. “It goes to waiting for doctors’ appointments, waiting in the emergency room, and affects so many aspects of people’s everyday lives.” 

The New York Sun

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