Newly sworn-in US President Donald Trump has signed an executive order ending Birthright Citizenship: a move that aims to withdraw the current practise of automatically granting US citizenship to children born in the country even if their parents are on a visa or are undocumented. The order essentially means that the children of foreign nationals including Indians on any visa type such as the H-1B work visa, may no longer be granted citizenship unless the other parent has citizenship or holds a green card. Children born to undocumented immigrants in the US may also no longer be granted automatic citizenship either.
On the campaign trail, Trump had vowed that he would sign such an order on the first day of his Presidency to stop “birth tourism” and undocumented immigration. Keeping the promise, the US President signed an order to end birthright citizenship on January 20, hours after he formally took office. The move will come as a major blow to many Indians as the present system is a popular method of obtaining citizenship for their children. The new restrictions are to come into effect thirty days from the date the order was signed.
According to a directive from the White House, the order is based on a new interpretation of the Fourteenth Amendment of the American Constitution. This historic Amendment—ratified in 1869 after the US Civil War—granted citizenship to formerly enslaved people. Citing this, the directive says the Amendment’s primary objective had been to correct a “shameful” Supreme Court ruling that excluded people of African descent from citizenship. The directive claims that the Fourteenth Amendment was never meant to be interpreted so as to grant citizenship universally to everyone born in the US.
The Fourteenth Amendment states: “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 new Trump administration places two restrictions on how the Amendment should be interpreted: The Amendment cannot grant citizenship to children born on US soil if the mother was illegally in the country and the father did not have a green card or citizenship at the time of the birth. Similarly, a child born to a woman on any temporary visa including—all types of work, education or tourism visas—will not be granted citizenship unless the father has a green card or citizenship.
In May 2023, Trump had said, “As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic US citizenship.” He had added that his policy would “choke off” a major incentive for undocumented immigration to the US.
At the time, Trump also accused foreign nationals of “fraudulently” entering the US during their final weeks of pregnancy in order to obtain US citizenship for their children.
In rather sardonic tones, a 2022 report by the US Department of Homeland Security (DHS), refers to birth tourism as “a hedged bet—a rainy day fund for a better life.” The report further says, “Birth tourism is problematic because it short circuits and demeans the US naturalisation process. US citizenship is not a backup plan.” However, Trump’s January 20 order has already been legally challenged, reports say. Calling the move unconstitutional, 22 Democratic-led states have filed multiple lawsuits alongside the District of Columbia, San Francisco City, organisations like the American Civil Liberties Union (ACLU), National Association for the Advancement of Colored People (NAACP), Indonesian and Latina immigrants and others.
An expectant mother and the Brazilian Worker Center have also filed for injunctive relief in Massachusetts state, Reuters reports. The complaint calls Trump’s order “flagrantly illegal” and adds that a president does not have the power to unilaterally revoke birthright citizenship. Like many critics of the order, the plaintiffs argue that over a century of Supreme Court rulings guarantee birthright citizenship to all children born in the US, regardless of their parents’ immigration status, with rare exceptions like children of foreign diplomats.
The move has led to an uproar. Some critics have argued that Trump can at the most, only direct federal agencies such as the United States Immigration and Customs Enforcement (ICE) to interpret citizenship more narrowly. Each such case, however, can be challenged in courts.
Others like The Brennan Center for Justice, a law and policy institute, call the Trump administration’s interpretation of the Fourteenth Amendment “ridiculous”. They add that opponents of birthright citizenship have always claimed that undocumented immigrants are not subject to the “jurisdiction of the US”—as ratified in the Fourteenth Amendment. They argue that this view is flawed because undocumented immigrants and their children are expected to follow the same laws as everyone else while on US soil, including paying taxes, they explain.
It is worth noting that while the Fourteen Amendment in 1869 sought to offer equal protection against enslavement and marginalisation, it would take until 1925 for Native Americans to be able to apply for citizenship, as policy and immigration law expert Jeffery Rosen, recalls to CNN.
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