After the American Civil War, the United States’ Constitution gained several amendments. The 14th amendment granted citizenship to anyone born in the country, regardless of their parents’ nationality. Now, US President Trump has said he believes he can overturn the 14th amendment’s key provision by executive order.
Here’s what you need to know about “birthright citizenship” law – both in America and Down Under.
“Birthright citizenship” refers to the idea that you can become a citizen of a country simply by being born there. The fancy legal term is jus soli, “right of the soil.” It was necessary after the Civil War because otherwise, the millions of enslaved African-Americans in the country were not considered citizens. (The Supreme Court had ruled in the Dred Scott case that people of African ancestry could never become US citizens.)
The US is one of 30 countries with birthright citizenship
Most countries in North and South America grant citizenship this way, including Canada, Mexico, and the US. People can also become US citizens by being born to US citizen parents (even abroad) or by going through the naturalization process.
Most countries outside of the Americas only grant citizenship to babies if their parents were citizens, but some have a modified version of jus soli. For example, if you were born in France and one of your parents was also born in France, you gain French citizenship even if neither was a citizen. If you spend the first ten years of your life in Australia, you can become an Australian citizen, whether your parents were citizens or not.
What does the 14th amendment actually say?
Here’s the exact wording:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
How Australia compares
Before anyone casts stones at the US for its citizenship policies, it's worth noting that we do not have jus soli in Australia. The principle was abolished from 20 August 1986.
Here are the rules, as outlined on the Department of Home Affairs website (emphasis ours):
Children born in Australia automatically acquire Australian citizenship if at least one parent is an Australian citizen or permanent resident at the time of the child's birth.
In other words, Trump's proposed changes are similar to Australia's existing citizenship laws.
Can an executive order revoke birthright citizenship?
Probably not, according to — let me check my notes — oh yes, pretty much everybody. Politico reports that “Nearly all on left and right say no.” Legal experts told the New York Times that the idea is “at odds with legal consensus.” Fox News states more optimistically that “Trump, should he pursue the executive order, would face court challenges, and it remains unclear whether he could prevail.” Paul Ryan said on talk radio that the President “obviously cannot do that.”
There’s an argument — well, an op-ed — that states there may be a loophole in the phrase “subject to the jurisdiction thereof.” What if, the argument goes, “jurisdiction” refers to having citizenship or permanent resident status? Then you could deny birthright citizenship to the children of undocumented parents. There has never been a court case settling that exact question, although NPR reports that “jurisdiction” in that sense has generally been interpreted to mean everybody who is subject to US law—in other words, everybody in the country besides diplomats.
The US President has signed unenforceable executive orders before, so this could still lead to a court battle even if that battle is, by most accounts, doomed. But there’s no guarantee such an executive order will ever materialise.
Dara Lind writes at Vox that ending birthright citizenship “has always been the restrictionist immigration proposal that’s hardest to disentangle from simple xenophobia.” The executive order threat may be more of an attempt to get people talking about immigration (which Trump’s supporters feel strongly about) as midterm elections approach.