Rep. Gaetz Brings Bill to End Birthright Citizenship for Children of Illegal Immigrants

Rep. Gaetz Brings Bill to End Birthright Citizenship for Children of Illegal Immigrants
Rep. Matt Gaetz (R-Fla.) walks to a closed-door GOP caucus meeting at the U.S. Capitol in Washington on Jan. 10, 2023. (Drew Angerer/Getty Images)

A new bill could prevent children born in the United States to illegal immigrants from gaining automatic birthright citizenship.

On Tuesday, Rep. Matt Gaetz (R-Fla.) announced he would sponsor a new bill called the “End Birthright Citizenship Fraud Act of 2023” to end unqualified birthright citizenship for the U.S.-born children of illegal immigrants.

Section 1, Clause 1 of the 14th Amendment of the U.S. Constitution states: “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.” This section of the 14th Amendment, which passed in the years following the U.S. Civil War, has been interpreted by many as giving citizenship to anyone born in the United States—even if their parents entered the country illegally before they were born.

Mr. Gaetz’s bill states that the children of refugees, immigrant parents serving in the U.S. armed forces, and other non-citizens who have been lawfully admitted into the United States would still be able to attain birthright citizenship, but that those born to individuals who entered the country illegally or remain without lawful status would not enjoy such citizenship rights.

“Birthright citizenship has been grossly and blatantly misapplied for decades, recently becoming a loophole for illegal aliens to fraudulently abuse our immigration system,” he said. “My legislation recognizes that American citizenship is a privilege—not an automatic right to be co-opted by illegal aliens.”

Mr. Gaetz contends that it was never the actual intent of the 14th Amendment to confer citizenship on the children of illegal immigrants. Specifically, he said the “subject to the jurisdiction thereof” language of the amendment excludes certain categories of people from birthright citizenship.

Federal regulations already hold that children born within the United States to accredited foreign diplomats are “not subject to the jurisdiction of the United States” and are not considered “a United States citizen under the Fourteenth Amendment to the Constitution.” Mr. Gaetz’s bill would suggest a similar interpretation holds true for children born in the U.S. to illegal immigrant parents.

In 2018, the U.S. Center for Immigration Studies estimated that about 297,000 children are born in the United States to illegal immigrants each year. The children born in a country with birthright citizenship laws are often referred to as “anchor babies,” because their citizenship status in such countries can be seen as a means of allowing their parents to also gain legal residency in the country.

Meaning of the 14th Amendment

Children born in the U.S. to illegal immigrant parents are widely considered to have automatic birthright citizenship, though the U.S. Supreme Court has never ruled definitively on the matter.

Some legal scholars hold the view that the relevant language of the 14th Amendment specifically excludes citizenship for the children of illegal immigrants.

“Critics erroneously believe that anyone present in the United States has ‘subjected’ himself ‘to the jurisdiction’ of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike,” Hans von Spakovsky, a senior legal fellow for the conservative Heritage Foundation, wrote in a 2018 analysis. “But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.”

Mr. von Spakovsky noted that children born within the United States to Native American parents did not have automatic birthright citizenship until the passage of the Indian Citizenship Act of 1924.

“There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are,” Mr. von Spakovsky argued.

The left-leaning American Civil Liberties Union (ACLU) has, by contrast, argued that the 14th Amendment birthright citizenship rules do apply to the children of illegal immigrants. After President Donald Trump proposed formally ending birthright citizenship in the fall of 2018, the ACLU pushed back, citing the 1898 case of the United States v. Wong Kim Ark in support of birthright citizenship for all U.S.-born individuals.

U.S. v. Wong Kim Ark centered around the child of Chinese citizens who were living and working in the United States at the time of his birth. In 1898, the U.S. Supreme Court ruled that Wong Kim Ark did have U.S. citizenship status after he was born.

“The Supreme Court confirmed that the 14th Amendment guaranteed citizenship to all children born on U.S. soil, no matter what their parents’ status. In United States v. Wong Kim Ark, the justices found that a baby born in San Francisco to parents who were citizens of China—and subject to the Chinese Exclusion Act, which prohibited them from becoming U.S. citizens themselves—was automatically a citizen at birth,” the ACLU wrote in 2018. “The court specifically rejected the argument that a child in those circumstances was not “subject to the jurisdiction” of the United States, and thus excluded from the Constitution’s citizenship guarantee.”

Mr. von Spakovsky challenged this interpretation of the 1898 Supreme Court case, arguing that the facts were distinct because Wong Kim Ark was born to lawful permanent residents in the U.S. “That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.”

If the Supreme Court rules that the 14th Amendment does confer birthright citizenship to the U.S.-born children of illegal immigrants, then the only way to strip automatic birthright citizenship for the children of illegal immigrants would require a constitutional amendment with a two-thirds vote in both the U.S. House and Senate and ratification by three-quarters of the individual states.

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