Don’t sacrifice it

The 2018 mid-term elections in the United States are in the books. President Donald Trump won a split-verdict from the electorate – his Republican Party won control of the Senate whereas the Democrats took back control of the House of Representatives.

Predictably, Trump proclaimed the results as a tremendous success for himself — taking comfort from a historical record which typically hands defeat to the president’s party in the mid-term election cycle. 

So, how did Trump defy the odds and eke out a partial victory? In a word: immigration. Exit polls show that about one-in-four voters thought immigration was the most important issue for them. About 75% of those voters were Republican – indicating that the president’s message resonated with his base. 

In the weeks preceding the election, Trump mobilised his base by launching a staggering attack on illegal immigration focusing his ire on the migrant caravan wending its way into the United States from Honduras by way of Guatemala and Mexico. Not content with alleging the caravan contained criminals and terrorists, the president threatened to abolish birthright citizenship in the US by way of executive order. The logic is simple – for long, anti-illegal immigration advocates have demonised “anchor babies” and “birth tourism.”

They claim that illegal immigrants enter the US to give birth to children with the sole objective of exploiting generous US laws which grant citizenship to anyone born on US soil. Armed with such citizenship, these children qualify for an array of welfare benefits at taxpayer expense, and eventually sponsor their own parents for permanent residency.

Critics parley a general public disdain for the idea that those who commit illegal activity ought not to benefit from such activity into opposition to birthright citizenship. If the children of illegal immigrants are denied citizenship, their parents lose the incentive to enter the US. Trump is merely tapping into that longstanding grievance — although his plan of abolishing the right by executive order is exceptionally brazen. 

Unfortunately for the president, birthright citizenship is protected by the Constitution – the 14th Amendment. That amendment, passed after the Civil War and the assassination of Abraham Lincoln, states that “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The 14th Amendment was ratified in 1868. Although its purpose was to recognise the citizenship of the former African-American slaves and nullify the decision of the Supreme Court in the case of Dredd Scott v Sandford, it is worded in broad terms: “all persons born …in the United States.”

Opponents of this idea argue that the children of illegal immigrants are not covered by the protection because the 14th Amendment only applies to those who are “subject to the jurisdiction” of the US. They argue that illegals are not subject to the jurisdiction because they have not given up their allegiance to their homeland.

And obviously, the children of illegal immigrants are not able to give allegiance to the US at birth or at least until they attain majority. Unfortunately, these arguments don’t withstand scrutiny. In the case of United States v Wong Kim Ark (169 US 649 (1898), the SC had to interpret the 14th Amendment to determine the citizenship status of a person born to Chinese nationals in the US.

In interpreting the 14th Amendment, the court observed birthright citizenship or jus soli’s roots in English law. The allegiance and protection obligations “were mutual — as expressed in the maxim protectiotrahitsubjectionem, et subjectioprotectionem — and were not restricted to natural-born subjects and naturalised subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom.”

Therefore, all “children, born in England, of such aliens were therefore natural-born subjects.” Further, Justice Gray stated that “[t]he same rule was in force in all the English Colonies” in America “down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”

The rationale for birthright citizenship was clear to the court — there was no reason to retain the allegiance of the former country. That country had no interest in applying its laws to ordinary citizens outside its borders — unlike its diplomats, for example.

Illegal acts

And it is clear that if illegal immigrants were to be asked whether they would choose allegiance to the US or Honduras, for example, they would choose the former. Therefore, little reason exists to impose the allegiance of parents onto children born on the soil, who in any case are innocent of any illegality. 

Then, how to square the idea that those who commit illegal acts should not benefit from such acts? One possible avenue is to bar the parents of such children from the benefits of citizenship if they entered the US illegally. This would act as a limited deterrent. 

Equally, legal migrants and their children should not be deprived of birthright citizenship. Restricting citizenship solely to the progeny of citizens or permanent residents would adversely affect many legal migrants — for example, Indian techies on H1B visas. This goes counter to Trump’s stated goal of a merit-based immigration system. 

There are both constitutional and pragmatic reasons to prefer birthright citizenship over citizenship based on blood. In the case of children of legal migrants, the policy arguments for preserving jus soli are strong – their parents have obeyed the law; the children are innocent of any wrongdoing; children born in the US have no allegiance or ties to the country of their parents; imposing a foreign citizenship would be unfair; denying them citizenship disincentivises high skilled migrants from relocating to the US to fill talent shortages; and denial inhibits assimilation into society.

The US is a beacon of hope primarily for its revolutionary constitutional ideals. The 14th Amendment’s conferment of citizenship as a birthright is central to those ideals. Trump shouldn’t destroy those ideals to tackle illegal immigration. 

(The writer is Pro Vice-Chancellor for Academic Innovation and a law professor at Deakin University. He previously served on the American Bar Association’s Commission on Immigration)