What can be done? - The 14^th Amendment

Millions of Americans have served in defense of the United States of America. Many have died to preserve the freedoms that we take for granted - freedoms granted to United States citizens by the US Constitution. Granting birthright citizenship to the children of illegal aliens whose first act in coming here is to break our laws, cheapens the meaning of our Constitution and denigrates the principle of the rule of law upon which our country was founded.

Some people believe that neither a Constitutional amendment nor legislation is required to deny automatic citizenship to those born to temporarily or illegally resident aliens, because the Supreme Court has never ruled on that question and Congress has never passed a law granting such automatic citizenship. In fact, there is no controlling legal authority for the federal government's policy of automatically granting citizenship to those born to temporarily or illegally resident aliens.

The holding in Wong Kim Ark applies only to persons born in the US to Legal Permanent Residents (LPRs). All Supreme Court opinions regarding persons born in the US to aliens other than LPRs are dicta - that is, opinion - including footnote 10 in Plyler v. Doe. Congress has never passed a law requiring the federal government to grant citizenship to persons born in the US to aliens other than LPRs. So why is the federal government doing it?

As to what can be done to remedy misinterpretation of the 14th Amendment, the United States Supreme Court could overturn Wong Kim Ark or otherwise resolve the birth citizenship issue on its own. In lieu of that, there are essentially three actions that can be taken.

1. Amend the United States Constitution

According to Article V of the US Constitution, Congress can propose, and the states ratify, an amendment to the Constitution.

Such an amendment would overrule Wong Kim Ark and clarify the meaning of the phrase "subject to the jurisdiction thereof," which is currently interpreted as justification for issuing birth citizenship. This option would be the only way to deny automatic US citizenship to those born to legal permanent residents.

2. Legislation

Although some experts believe that a Constitutional amendment would be necessary to remedy the misinterpretation, many believe that Congressional action would be sufficient and is urgently warranted.

The 14th Amendment itself stipulates that Congress has the power to enforce its provisions by enactment of legislation. The power to enforce a law is necessarily accompanied by the authority to interpret that law. Therefore, an act of Congress stating its interpretation of the 14th Amendment - as not including the offspring of illegal aliens - is long overdue.

It should be noted that the Supreme Court stated in a footnote of the 1982 Plyler v. Doe case that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States", and that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." Yet this note specifically addressed children who were born outside of the United States, and not those born to illegal alien parents within the United States. Thus, it indeed remains within the purview of Congress to act to interpret the 14th Amendment in accordance with Article I of the Constitution.

Congress has recognized the birthright citizenship issue

Rep. Howard Stump (AZ) introduced H.R 190 in 2001 to deny citizenship to children of illegal alien mothers. In 2003, the Citizenship Reform Act of 2003 (H.R. 1567), introduced by Rep. Nathan Deal (R-GA), was introduced to amend the Immigration and Nationality Act to deny birthright citizenship to children born in the United States to parents who are not U.S. citizens or permanent resident aliens.

The Citizenship Reform Amendment (H.J. Res. 44), introduced by Rep. Mark Foley (R-FL), would have amended the U.S. Constitution to provide that no one born in the U.S. will be granted automatic U.S. citizenship unless a parent is a U.S. citizen or has been lawfully admitted for permanent residence at the time of the birth. Unfortunately, none of these bills survived.

In 2009, Representative Nathan Deal (R-GA) had introduced H.R. 1868, The Birthright Citizenship Act of 2009.

In 2017, Representative Steve King introduced H.R.140 - "Birthright Citizenship Act of 2017". This bill would amend the Immigration and Nationality Act to consider a person born in the United States "subject to the jurisdiction" of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien whose residence is in the United States, or (3) an alien performing active service in the U.S. Armed Forces. The bill states that this Act shall not be construed to affect the citizenship or nationality status of any person born before the date of its enactment.

Congress is clearly aware of the birth citizenship issue. Now is the time to act.

3. Executive action

Executive action would involve issuing a presidential Executive Order, changing one or more regulations, or changing one or more administrative procedures.

This would be the most expedient approach, yet it would undoubtedly be challenged in court. This approach would be the least permanent solution, as it could be reversed by a subsequent leftist president.

If challenged in court, there is good likelihood that the Supreme Court would uphold the action. Raising the issue might create popular momentum to force Congress to finally pass a law restricting birth citizenship.

Regulatory approaches

A regulation cited in the Foreign Affairs Manual, 8 FAM 102.2 requires anyone applying for a passport to provide a certificate of birth in the United States as proof of citizenship, as set forth in 8 FAM 301.1 Although this regulation (22 CFR 51.42) does not explicitly state that a birth certificate is the only evidence required, that is the implication. Thus, a regulatory change to require the applicant to also submit evidence that at least one parent is either a citizen or a Legal Permanent Resident residing in the US at the time of the birth would probably be necessary, in addition to revising the FAM.

A second regulation declares that a child born in the US is a US citizen if neither parent is a "foreign diplomatic officer" as the term is defined in the regulation. Although this regulation (8 CFR 101.3) is a rule for determining the citizenship status of children born to foreign diplomatic personnel, the above declaration is not explicitly limited to that situation. Presumably, the context is so obviously limited to the children of diplomatic staff that it has not been relied on to grant birthright citizenship to the children of other aliens. Nevertheless, to avoid confusion, removal of the above declaration from the regulation, (which is not necessary for the rule anyway) and any implementing documentation would probably be necessary.

These two regulations, along with implementing documentation like the FAM, appear to be the only formal documents declaring the government's irrational birthright citizenship policy.

A similar revision to other regulations might be necessary, such as the one for verifying citizenship in order to be issued a Social Security number (20 CFR 422.107). Changes to all relevant regulations and to administrative policies such as the FAM could presumably be done via executive order requiring all government agencies to interpret "subject to the jurisdiction thereof" in accordance with the holding in Wong Kim Ark and declaring that only persons born of either a citizen or a Legal Permanent Resident residing in the US at the time of the birth will acquire birthright citizenship.

An executive order should be sufficient because there appears to be no law requiring the government to grant or recognize citizenship based only on a certificate of birth in the United States. The closest law appears to be one that considers a birth certificate, along with an identity document such as a driver's license, to be "satisfactory documentary evidence of citizenship or nationality by individual declaring to be citizen or national of United States" for the sole purpose of verifying eligibility to receive Medicaid (42 USC 1396b(x)). This is consistent with the fact that Rep. Steve King's proposed Birthright Citizenship Act does not revise or repeal existing laws but merely codifies the holding in Wong Kim Ark (while also granting citizenship if born of an alien in the military).

Birth citizenship is an outdated, antiquated practice that has been abandoned by nearly all other Westernized nations as well as most developing nations. It remains to be seen whether our elected public servants will do more than just pay lip service to halting this practice.

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