The Volokh Conspiracy
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Some Family And Immigration Law Questions About Birthright Citizenship
One virtue of birthright citizenship is simplicity. A child born in the United State is a citizen, and the government does not need to make any inquiries about either parent.
But let's assume, for argument's sake, that the Constitution does not provide for birthright citizenship in all cases. A host of questions would be raised that do not have simple answers.
First, let's start with a question under current law. The example that everyone seems to agree with is that the child of an ambassador is not a birthright citizen. The answer is a simple no, right? Not so fast. What happens if an ambassador has a child with a U.S. citizen? Would that child then be a citizen? In other words, does the "exception" to birthright citizenship only apply if both the father and mother were part of a diplomatic mission from abroad?
During debates over the Fourteenth Amendment, the status of diplomats was often discussed. But I suspect it was assumed that an ambassador would be married, if at all, to a woman from his home country. Many states had prohibitions on miscegenation, which would further restrict the ability of some ambassadors to marry American women. Certainly diplomats have fathered children with American women over the years. Were those kids citizens at birth? A child born to an unmarried couple would generally be considered illegitimate, or a bastard. Would a bastard receive birthright citizenship if his mother was a citizen and his father was an ambassador?
Second, moving away from the ambassador example, how would citizenship work if one parent was a citizen and the second parent was not a citizen. Morales-Santana held that Congress could not apply one set of rules when the mother was a citizen and another set of rules when the father was a citizen. Such disparate treatment, Justice Ginsburg found, violates the Equal Protection Clause of the Fifth Amendment (even if such a provision of the Constitution actually existed.) But my question is a bit different. In the absence of any statutory implementing legislation, how would the Citizenship Clause apply to a child with one parent who is a citizen and one parent who is not a citizen? I don't think there is a clean answer. I suspect people in the 1860s would have presumed that a person who was not a citizen would marry someone who was of the same status but I am confident there were exceptions.
Third, assuming that the Fourteenth Amendment does not grant birthright citizenship, what would happen to the child of an illegal alien who was granted some form of statutory lawful presence, such as DACA? Would that statutory grant of temporary protection overcome the presumption against birthright citizenship for the child of an otherwise removable person?
Fourth, would the child of a person seeking asylum be eligible for birthright citizenship? Scholars who argue against birthright citizenship focus on concepts like loyalty and allegiance. But a person seeking asylum is affirmatively rejecting an allegiance to his home nation. Indeed, the asylum applicant fears that if he returns to his home country, he would be subject to persecution. Would a claim of asylum provide the requisite allegiance to justify birthright citizenship.
Fifth, how would birthright citizenship interact with surrogacy? Is citizenship determined based on the status of the mother who carries the child to term? Or the woman who donated the egg? The man who donated the sperm? And so on. I'm sure other countries that lack birthright citizenship have considered these questions.
These questions bring me back to the early days of the DAPA litigation. In December 2014, I wrote:
In the run-up to NFIB v. Sebelius, health care lawyers suddenly had to become experts in constitutional law, and constitutional lawyers had to become experts in health care law. My sense (from personal experience) is that with rare exception, neither group fully succeeded. There is a similar dynamic now with the immigration executive action. Immigration lawyers are being asked to opine on the scope of the President's duty to take care that the laws are faithfully executed, and constitutional lawyers are being asked to weigh in on the complicated immigration code. At this point, there is still quite a gap between the two.
I don't profess to be an expert on immigration law, but I have written extensively about the intricacies of the INA over the years--something that not all constitutional law scholars have bothered to learn. That background has helped me see current debates over birthright citizenship a bit more cleanly.
Yet, I find that many scholars writing on the constitutional issues underlying birthright citizenship have not fully considered the technical issues of immigration law. Conversely, scholars of immigration law have not fully considered all of the competing arguments based on constitutional law. People just assume that the side they agree with is obviously correct. I still think the correct answer is that the Fourteenth Amendment provides birthright citizenship, but I freely acknowledge there are some competing arguments and complexities.
