New Article on “Birthright Citizenship and Undocumented Immigrants”

At the Just Security site, I have a new article explaining why the incoming Trump administration’s apparent plan to deny birthright citizenship to US-born children of undocumented immigrants is unconstitutional:

The incoming Trump administration may be preparing to deny citizenship rights to children of undocumented immigrants born in the United States… According to the New York Times, “the team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.”

Such policies would be a blatant violation of the Fourteenth Amendment, both the text and the original meaning. Section 1 of the Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” There is no exception for children of illegal migrants. There is broad agreement on that point among most constitutional law scholars, across the ideological and methodological spectrum….

In the article, I also criticize various arguments to the effect that children of undocumented immigrants are not covered because illegal migrants are not within the “jurisdiction” of the United States. That includes both traditional claims that “jurisdiction” only covers people who have the same rights as citizens (an argument that would destroy the entire purpose of the Citizenship Clause), and newer arguments  claiming that undocumented migrants aren’t covered because they are “invaders.”

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