What Is Birthright Citizenship? President Trump Vows To Bypass Provision With Executive Order

The answer involves hundreds of years of legal history and still isn't fully clear.

what is this birthright citizenship business that donald trump plans to end
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The answer involves hundreds of years of legal history and still isn't fully clear.

Donald Trump this week vowed to end so-called “birthright citizenship,” the loophole (as immigration opponents see it) implied in the Constitution that basically grants citizenship to everyone born on U.S. soil, leading to the matter of so-called “anchor babies.” But while legal scholars and the courts wrangle over whether or not Trump has that authority, many Americans are unclear on what the concept even means.

So what is “birthright citizenship”? The answer is a bit complicated, as it turns out, and it involves weighty legal issues that have been debated, applied, and argued for centuries.

Jus Soli And Jus Sanguinis

As World Atlas explains, nations look to one (or both) of two ancient legal principles, each dating back centuries if not even millennia, to determine who gets the right of citizenship in their nations. Those two principles are referred to by their Latin names, jus soli (the right of soil) and jus sanguinis (the right of blood).

Jus Sanguinis refers to the practice of conferring citizenship to a person based on the citizenship of his or her parents. If an Italian woman gives birth to a baby, that baby is an Italian citizen, whether he or she was born in Milan, Montreal, or Minneapolis.

what is birthright citizenship
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Jus Soli, on the other hand, means “right of the soil,” and basically means what you think it means: a country grants citizenship to any baby born within its borders. So if a pregnant French woman were in the U.S. on business, and she gave birth while here, her baby would be an American citizen (and a French citizen, but more on that in a few paragraphs).

So Where Does The USA Fit In?

The U.S. uses both legal principles to confer citizenship on its babies. The baby of an American woman who gives birth in a foreign land will still be a citizen of the U.S. (and possibly the foreign country; again, more on that in a few paragraphs) via jus sanguinis. And a baby born here, regardless of his or her parentage, is a citizen via jus soli.

Not for nothing, jus soli is used comparatively rarely these days; of the 194 or so recognized countries, only 30 of them confer citizenship based on jus soli. The U.S. is one such country, so are Canada, Mexico, and a handful of other countries, almost all of which are in the Americas.

The 14th Amendment

Jus Soli isn’t just a legal principle that is applied in practice: it’s enshrined in the Constitution. Specifically, it says so right there in the 14th Amendment.

“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.”

The amendment was written in order to grant citizenship rights to freed slaves – immigration, at the time, was just something that happened, and by-and-large wasn’t the complex legal issue that it is now.

Nevertheless, though the Amendment was written with freed slaves in mind, a century and a half later it still applies to all babies born here.

Where Things Get Tricky

Right away you can probably see a few problems with this situation.

For starters, this can lead to a person being a citizen of two countries. Dual citizenship, as it’s called, is generally considered at best a conversation topic, and rarely has any practical effect on the person claiming it. Things can get tricky, however, when it comes to such things as compulsory military service, tax issues, or legal extradition. But for the most part, the overwhelming majority of people with dual citizenship simply live their lives as if they were citizens of the country where they choose to live.

But with jus soli, it presents a loophole that is easy (in theory) to exploit: simply make your way to a country that offers jus soli citizenship, give birth there, and voila! your baby is a citizen of that country. It’s the very thing that drives quite a bit of the illegal immigration to the U.S., and it leads to what the media calls “anchor babies” – that is, babies who are citizens of the U.S. and whose parents are illegal aliens.

So Can Donald Trump End Birthright Citizenship With The Stroke Of A Pen?

That question likely has no clear answer, according to CNN. The problem for Trump is that, in the opinion of legal scholars, he’s essentially attempting to use his executive powers to overturn a Constitutional amendment – and that’s not how the Constitution is amended. But since no president has ever tried to use an executive order to tighten up or address birthright citizenship, there’s no precedent in case law that gives him a clear path to do it.

Long story short: unless and until Trump tries it and the matter makes its way through the courts (up to and including the Supreme Court, a process which could take years), there’s no knowing for certain.