U.S. Proposal on Birthright citizenship

Why in news?

U.S. President said recently that he intends to issue an executive order that would end birth right citizenship for children born in the US to undocumented immigrants.

What is a birthright citizenship in US?

• Birthright citizenship in the United States is acquired by virtue of the circumstances of birth.
• It contrasts with citizenship acquired in other ways, for example by naturalization.
• The U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the United States.
• This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands.
• Birthright citizenship also applies to children born elsewhere in the world to U.S. citizens (with certain exceptions).

What was the basis of this decision?

• The U.S. proposed to strike down the right to citizenship decided only by the place of birth, derived from common law.
• The principle guarantees that a child born on US soil is automatically a full citizen, irrespective of the citizenship status of its parents.
• The decision seems to be determined to follow the trail blazed by India.
• In 2004, India abolished a similar provision in response to fears about mass immigration from Bangladesh.
• India is the only big country to take this step while the rest of the world supports birthright citizenship, though it may be conditional.
• With the exception of Chile and a few minor states, the Americas support unconditional birthright citizenship.
• The decision was taken at the backdrop of the assertion that birthright citizenship draws people to illegally enter the United States.
• However, 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.
• It has long held that the phrase “under the jurisdiction thereof” extends citizenship to anyone born under U.S. territorial jurisdiction, including the children of immigrants.
• But some have recently claimed that undocumented immigrants are under the jurisdiction of foreign countries, rather than the United States, precluding their children from birthright U.S. citizenship.
• Recognising this, the U.S. President took a stand to end birthright citizenship to the children of undocumented migrants.
• However, such a move would significantly restructure U.S. immigration and constitutional law.

Is the move constitutional?

• The U.S. Constitution grants the power to regulate citizenship to Congress, not the president.
• Also, it grants only Congress the authority to establish rules for citizenship by naturalization.
• It grants birthright citizenship to all persons born on U.S. soil, meaning that any change would probably require a constitutional amendment.
• Also, the recent proposal seems an unprecedented grab for executive power by the president.
• It probably violates the intent of the framers of the constitution.
• There was a similar ruling in 1867 which stated that black Americans in U.S. could not hold birthright citizenship, effectively making citizenship a hereditary racial matter.
• However, the decision was overruled and the citizenship was granted to anyone born under U.S. jurisdiction.
• By linking citizenship status to parentage rather than birthplace now, the proposed executive order relies on similar legal reasoning.
• Also, any immigrant fell under the protection of the laws and police and courts of the United States was subject to the jurisdiction of the United States.
• Therefore, children of these immigrants were entitled to birthright citizenship, as are the children of undocumented immigrants born on U.S. soil today.

What should be done?

• Thousands of persons of English, Scotch, Irish, German, or other European parentage have always been considered and treated as citizens of the United States so far.
• Hence the decision will face legal challenges, since millions of citizens, the children of immigrants who were not citizens when they were born, would be disenfranchised by such a move.
• Also many of them would be found to be achievers, and could mount a successful class action against the proposal.
• The Supreme Court in U.S. had already upheld a watered-down version of the president’s travel ban, initiated by executive order.

• That ruling gave wide leeway to interpret and enforce the nation’s immigration laws.
• Hence, there is a chance that the court could affirm some or all of this executive order that reinterprets birthright citizenship law.
• But the message would have gone out nevertheless, that in the future, the US may not remain as bravely welcoming of outside talent as it has been.

Source: Financial Express