The 14th Amendment to the United States Constitution, as it applies to birthright citizenship, is brief. The first line of Section 1 states, “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.” With Trump having brought the issue to the forefront, the matter needs to be put to rest once and for all.
I earlier penned Rethinking Citizenship—Is Born In The U.S.A. Enough? In it, I proposed that a child born in the United States should have the same legal status as its parents. If the parents have no legal status, neither should their child.
Almost all discussions I see on this topic focus solely on “subject to the jurisdiction thereof.” The rest mostly address the distinction drawn in both Article 3 Section 2 and in the 11th Amendment of the Constitution between subjects and citizens of foreign states and others. Subjects and citizens of foreign states should be enough to disqualify the children of aliens based on their subjection to a foreign power, although it may not be for the children of some United States citizens.
However, no one pays much attention to the last two words of that famous sentence: “they reside.” The law holds “A resident is a person who lives in a particular place for the indefinite future.” Following the principal rule of statutory construction, this definition must be applied to all aliens. It is a novel way to say no to birthright citizenship for the children of aliens.
YouTube screen grab.
Foreign-born United States citizens can reasonably be expected to live in the United States indefinitely, as can their children.
Lawfully admitted Permanent Residents (LPRs or green-card holders) intend to live in the United States until they naturalize or move elsewhere. While their children might reasonably be argued to intend to live in the United States indefinitely, while they are minors, they are under their parents’ control. LPR status should be granted to them until their parents naturalize or they reach the age of majority and apply to naturalize on their own.
Conditional LPRs are expected to convert to LPR status after two years or leave the country if their conditions change. Their children should have the same status and be expected to convert or depart with them.
Refugees and asylees are admitted temporarily to the United States. If conditions change within one year, they may be required to return home. After one year, they are required to apply for LPR status, which can be denied on various grounds. Their children also should have the same status and be expected to convert or depart with them.
Now we come to Obama’s and Biden’s patently unlawful admission categories.
Temporary Protected Status (TPS), including for the thousands upon thousands to whom TPS has been “extended,” is just that—temporary. The humane and wise thing to do would be for the 119th Congress to allow original (long-term) registrants under TPS to convert to life-long conditional LPR status to original (long-term) registrants under TPS, order the removal of the rest, and halt all admissions to the US and visa issuances to nationals from those countries. (A fuller discussion is here.)
Humanitarian Parole, like the CBP-1 program, is just another type of TPS. Send them home and halt any new admissions.
DREAMers status is technically deferred deportation. As with TPS, original registrants should be allowed to convert to life-long conditional LPR status. (More on this here.)
By law, these categories are temporary. Thus, the children of aliens in each of them should have their parents’ status. Children of conditional LPRs should be able to convert to permanent LPR status upon reaching their majority.
The United States admits millions of visitors every year for a wide variety of purposes—visiting, school, temporary work, athletic events…all sorts of reasons. All stated under penalty of law, both when applying for their visa and when presenting themselves for admission at a port (land, sea, or air) of entry, that they were coming for a limited time and purpose. Therefore, there is no expectation of indefinite residency in any state. Children born to them while in lawful status should be granted the same status.
Until the disastrous Biden-Harris administration, more than 2/3 of all illegals in the US were those who had been lawfully admitted on a temporary basis and failed to return home at the termination of their allowed stay. As they were not admitted to have any legally recognized indefinite nature residence in the United States, their children born while they are outside of legal status should also have no legal status. When they depart, on their own or via governmental action, their children certainly should be going with them.
Those who were never lawfully admitted to the United States have no business being here. Their presence can have no validity when considering indefinite residency in any state, as they are always on the point of being apprehended and deported. Thus, their children born here should also have no legal status except as the children of their parents, who are expected to care for them and take them home when they depart. (More on the damage illegal aliens can cause here.)
And for those who whine that these children don’t know the culture of their parents’ homeland—that is bunk. They live in the culture of their homes, eating the food their parents prepare for them and speaking the language of their parents to them.
Section 5 of the 14th Amendment says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The 119th needs to take care of this quickly so we can move on. Let the courts wrangle it out after the law is enacted, as they inevitably must. However, it is imperative that this be addressed with alacrity so that it can get to the courts and be verified as the law of the land while We the People are adequately represented in both Congress and the White House.
Anony Mee is the nom de blog of a retired public servant who X-tweets at oh_yeahMee.
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