The inescapable Donald Trump has turned immigration into a front-burner issue in the 2016 presidential election. Unfortunately, his policy proposal suggests some gaps in his knowledge about the topic. In particular, his proposal to “end birthright citizenship” is based on misunderstandings about the real causes of immigration.
The United States’ generous policy of granting automatic birthright citizenship or jus solis (law of the soil) to all, with a few narrow exceptions, is based on the U.S. Constitution. The guarantee of citizenship enshrined in the 14th Amendment reads, “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.” The Republican Party, in the face of stiff southern Democratic resistance, ratified this Reconstruction amendment in 1868. The provision directly repudiated Dred Scott v. Sanford, the infamous case in which the Supreme Court had ruled that African Americans were excluded from citizenship.
The birthright citizenship clause has long been specifically applied to immigrants who are not African Americans. In the case U.S. v Wong Kim Ark (1898), the Supreme Court ruled that children born on U.S. soil to Chinese immigrants legally present in the United States (but who were ineligible for citizenship due to the Chinese Exclusion Act) were still citizens as stipulated by the 14th Amendment.
Now Trump and much of the GOP field say they wish to repeal the provision. They claim that it draws foreign women to the United States to give birth to “anchor babies” who then are eligible for U.S. resources and who presumably serve as a foothold to legal status for their non-citizen parents. On Page 4 of his immigration plan, Trump claims that birthright citizenship is “the biggest magnet for illegal immigration.”
Social science says that this claim is wrong. While different factors push or pull people to come to the United States in undocumented ways, birthright citizenship does not rank high as an incentive. Research shows that the largest draw for undocumented immigration is the availability of jobs in the United States. The huge gap between wages in the United States and in the immigrants’ home countries gives people an incentive to come to the United States —even if the pay appears low to native U.S. citizens. The recent surge of unaccompanied minors, many from Central America, was driven by intractable political and criminal violence in their home countries. No parents want their kids to be murdered. The fact that an estimated 250-490 migrants die each year along the U.S.’s southwestern border shows that many people are desperate enough to risk their lives rather than stay put. If politicians really want to curb undocumented immigration, repealing birthright citizenship will have little effect.
Nor is it clear that having an “anchor baby” would be a good way to get government resources and a coveted green card, even under the best of circumstances. It’s just not a good way to achieve the goal. While the U.S. citizen child would be eligible for government services such as food stamps, Medicaid and Obamacare, undocumented parents would not. In addition, under U.S. immigration law, a U.S. citizen child would not be able to file a relative petition for his/her parents until he/she reached the age of 21, after which it might take years for the petition to be processed. It simply doesn’t make sense to hide out for decades in the shadows, evading detection and deportation, just to cash in your anchor baby chip.
If the concern is wealthy women coming to the United States for “immigration tourism” to give birth, this issue could probably be addressed in a less aggressive way. Immigration law professor Margaret Stock has suggested that one could advise pregnant women at overseas visa interviews of the U.S. born child’s tax and military service obligations.
Trump’s proposal failed to note that repealing birthright citizenship would require a constitutional amendment, an unrealistic and impractical path to policy change.
Some have suggested that Congress need only reinterpret the birthright clauses’ “subject to the jurisdiction of” wording to exclude children born to undocumented persons since they are not really “subject to the jurisdiction of” the United States. But suggesting that undocumented immigrants are not under the jurisdiction of U.S. law would have a host of unintended consequences.
Repealing birthright citizenship via constitutional amendment would require following the process laid out in Article V of the Constitution. In theory there are two methods of changing the constitution, but only one method has been used to date. Two-thirds of members of both the House and the Senate would have to pass a proposed amendment, and three-fourths of the state legislatures would have to vote to ratify it.
That high bar, which requires supermajorities at both stages, means that only 27 amendments have been successfully added to the Constitution in the United States’ 239 year history.
Whatever Trump’s motivations, his rhetoric is likely damaging the Republican Party brand among Latino voters. Political science suggests that the GOP needs to also worry about alienating other groups too, including the fastest growing racial and ethnic group, Asian Americans. Political scientists Alexander Kuo, Neil Malhrota and Cecila Hyunjung Mo note that many Asian Americans are not naturally a Democratic constituency, given that high income levels have been shown to correlate with voting Republican. However, Asian Americans, whose average income levels are similar to those of whites, strongly identify as “Democrat.” After carrying out several experiments to test social exclusion and inter-group solidarity, the authors conclude that one of the reasons Asian Americans voted overwhelmingly for Barack Obama in 2008 and 2012 was because they felt solidarity with Latinos on the issue of immigration.
Upon signing the Civil Rights Act of 1964, President Lyndon Baines Johnson purportedly said to an aide, “We have lost the South for a generation.” The Republican Party may find out whether it has lost Latinos and other minority groups “for a generation” because of Trump’s immigration proposals.
Anna O. Law is associate professor of political science and Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College,the author of The Immigration Battle in American Courts, and is on twitter at @UnlawfulEntries.