Revoking 14th Amendment Birthright Citizenship: The Ultimate in Voter Suppression

Presidential candidate Donald Trump and several of his Republican competitors have now endorsed the notion of doing away with the very first sentence of the 14th Amendment to the United States Constitution, at least insofar as it has been interpreted to grant automatic citizenship to children born of undocumented immigrants. And, Trump adds, this policy should be retroactive with respect to those currently considered citizens.

That Amendment provides that:

"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."

While many commentators have assumed that such a change would require a new constitutional amendment to accomplish this goal, many of those who seek to deny future citizenship (or potentially even revoke existing citizenship) of children of undocumented parents would prefer to attempt to make the change under the simpler route of congressional legislation or, as Trump has proposed, by court action re-interpreting the 14th Amendment language.

The legislative route would involve passing a law deeming that any person born in the United States would not be considered "subject to the jurisdiction" of the United States within the meaning of the 14th Amendment language unless at least one of his or her parents was, within nine or so months previous to his or her birth (to obviate the issue where a father dies before birth but after conception), a citizen or legal resident of the United States. Congress has specific power under Section 5 of the 14th Amendment "to enforce, by appropriate legislation, the Amendment's provisions."

Congress also has power, under Article I, Section 8 of the Constitution, to establish "a uniform Rule of Naturalization" -- but this provision would seem not applicable in terms of defining who exactly is automatically a citizen by virtue of being "born" here rather than being "naturalized" under congressional rule.

Such legislation, if passed by a Congress under Republican control and signed by a GOP president (or possibly an Independent President Trump), would of course be subject to legal challenge in terms of the definitive meaning of the birthright citizenship clause in the 14th Amendment. The history here is not absolutely clear.

In terms of legislative history, the focus was clearly on granting citizenship to children of slaves with unmistakable clarity, and the main bone of contention involved children of Indians with whom the U.S. had treaties, which fuzzed-up the issue of "jurisdiction." The sponsor of the Amendment in the Senate said that the jurisdiction clause was intended to exclude only children born in the U.S. whose parents were ministers and ambassadors from foreign nations; the Chair of the Senate Judiciary Committee also agreed. As noted in the link, opponents of birthright citizenship often misquote the sponsor by eliding and adding to his literal words.

In the Slaughterhouse Cases, 83 U.S.36 (1873), the US Supreme Court, in dicta merely noted in passing irrelevant to its actual holding on another issue, stated that the "jurisdiction" phrase was "intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States born within the United States."

Twenty-five years later, however, the Court decided specifically on point that a person born in the United States of parents who, at the time of such birth, are subjects of a foreign power and presently domiciled within the United States, conducting a business and not employed in any diplomatic or official capacity, would automatically become a citizen of the United States under the 14th Amendment language and centuries of precedent [United States v. Wong Kim Ack, 169 U.S. 649 (1898)]. In this case, however, the parents were legally present in the U.S. at the time of birth, so it could be distinguished from a situation where the parents are undocumented. Births to undocumented parents amount to somewhere around 340,000 to 400,000 per year, according to estimates, and total about 4 million citizens as of now.

Accordingly, while it has been common practice for over a century to treat children of undocumented immigrants born in the U.S. as citizens by birth, one must take seriously the gathering momentum behind efforts like Trump's, to force a new Supreme Court decision in today's circumstances on the point of such children either directly, by challenging the century-old Wong holding, or by legislation purporting to deny or even revoke such an outcome under cover of the 14th Amendment's own enforcement clause. Revocation would not constitute an "ex post facto" law prohibited by Article I, section 9, because it would not create a criminal offense after the fact but merely potential civil grounds for deportation. (See "The United States Constitution: What It says, what it means" by JusticeLearning.org.)

Trump's proposal makes no mention of a Constitutional amendment route, and could even be taken to suggest that he would try to accomplish the result through an executive order, if he could (perhaps based on an 1873 attorney general's opinion). But, at the very least, any GOP president could attempt to work his or her will through a Congress still in control of the Republicans.

Members of the GOP have already attempted, in both Arizona and Mexico, to deny such citizenship in practice through legislation (Arizona) or, through administrative "security" rulings (Texas Health Commission), to deny birth certificates to children of undocumented immigrants on the basis that parentage cannot be proven one way or the other by any acceptable documentation of their parents' status.

If federal legislation were to be passed on the "subject to jurisdiction" clause, as outlined above, and then survive constitutional challenge in today's GOP-dominated Supreme Court, then essentially the same effect would ensue.

In addition to being unable to attend public school and receive medical care, or public assistance of any kind, because of their lack of even a birth certificate, the U.S.-born children of the undocumented would ipso facto no longer be citizens, and thus would no longer enjoy the rights under the Constitution specially applicable to citizens: the "privileges and immunities" clause of the 14th Amendment, and the right to vote under the 15th Amendment.

If congressional legislation actually attempted to revoke all such existing citizenships (as Trump proposes to do by court action), there would doubtless be a push at the state level to purge voting rolls of all those who cannot prove that at least one of their parents was either a U.S. citizen or legal resident -- a task of enormous complexity requiring not only herculean research efforts by millions of voters themselves, but also (and ironically) the very kind of "big, intrusive government" enforcement and record-keeping operations that many in today's Republican Party profess to abhor.

Thus, we would, under the Trump proposal as well as perhaps those of Governors Walker, Christie and Jindal and possibly Senator Cruz, not only undertake mass deportation of 11 million undocumented persons, but also a mass purge of state voting rolls. Remember: if any of these contenders becomes the GOP nominee, these outcomes would in all likelihood be enshrined -- indeed, even promised -- in the Party's official campaign platform. The economic consequences of such unprecedented social disruption in terms of collapse in housing demand and values, loss of tax revenue, federal budget deficits growth and collapse in GDP, are almost unfathomable.

Gratefully, there are significant complications in this scenario. If the end result is accomplished by legislation that declares such children formally outside the "jurisdiction" of the United States, then how exactly could the federal government actually "deport" them? They would not have "entered" the country illegally (a finable misdemeanor, but not in itself ground for deportation in any event). Once "born" here without citizenship or papers, however, they would be "present" without documentation. Normally, that would be the formal grounds for civil deportation procedures. But that requires "jurisdiction," which Congress would have just declared to be absent!

So there would be a new, unprecedented, official permanent "underclass" in America, thanks to government action: with no rights as citizens, but un-deportable by operation of the very law that denies them citizenship. (Perhaps this is the reason for Trump's proposal for a well-funded "refugee" plan for expanding foster care -- but even that is practically impossible, without birth certificates, under state law.)

The new underclass would apparently still be considered constitutional "persons," for the several protections and rights the Constitution provides expressly to "persons" or "the people" (e.g., 5th Amendment, 2nd Amendment), or federal, state and local anti-discrimination laws, focus not solely or specifically on protecting "citizens." Congress might try to draft around this problem by attempting artfully to preserve "jurisdiction" for the sole purpose of deportation, but that could weaken the case for affirming such statute at the Supreme Court, or at the very least trigger an even broader effort to deport all those whose citizenship would be revoked, bringing the deportation total target to at least 15 million.

Presently, the fashionable view seems to be to treat the immigration proposals of Trump and others along these lines with the back of the hand or even with derision. This scenario analysis suggests a more serious study of these proposed implications for the kind of American "Exceptionalism" -- a core of which is our longstanding commitment to birthright citizenship -- which really is an exception compared to most countries, especially those in Europe. By the way, current experience in Europe clearly shows that the absence of birthright citizenship does virtually nothing to stem the tide of undocumented migration!

Besides setting off the mother of all voter suppression legislation and enforcement, revoking birthright citizenship and deportation of 11-15 million residents of the U.S. would have enormous adverse economic consequences: for housing demand, finance and prices; food prices and employment in the agriculture industry; economic activity, consumer spending and GDP, and foreign trade.

The sheer cost of the proposed mass deportations has been estimated (see above link) at over a quarter trillion dollars.

It has been fashionable for some Republicans and progressives to dismiss the Trump candidacy with contempt, or just with laughter. But the level of support in the average of polling data suggests that at least his first formal policy proposal regarding immigration is no laughing matter, and should be analyzed and evaluated on its own merits (and dangers).