Comment: Birthright citizenship has helped make America great

By the Bloomberg Opinion Editorial Board

Amid the flood of executive orders issued from the White House on Jan. 20, one is especially misguided, both in legal and policy terms: Beginning in 30 days, the order declared, children born in the U.S. to mothers who are undocumented immigrants — or even legal temporary residents — may no longer automatically be granted citizenship of their own.

The order was immediately challenged in court, where a federal judge in Seattle, John C. Coughenour, quickly declared it “blatantly unconstitutional.” Two further injunctions followed last week.

For good reason. “All persons,” the 14th Amendment reads, “born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Administration lawyers argue that the phrase “subject to the jurisdiction thereof” doesn’t apply to children of immigrants who arrived in the U.S. either illegally or on a visa.

Logical quandaries aside — the implication seems to be that people born in the U.S. aren’t subject to its laws — there’s no statutory basis for such a claim. That any lawyer would even make the case, said Coughenour, “just boggles my mind.”

Both the Supreme Court and Congress have allowed the plain language of the amendment to go unchallenged since the court’s 1898 ruling in U.S. v. Wong Kim Ark. At the time of the amendment’s ratification, the phrase “subject to the jurisdiction thereof” referred to members of sovereign native tribes. It continues to capture those born to diplomats or soldiers of an invading army.

Regrettably, the latter group may be what the president has in mind. He frequently uses the word “invaders” when referring to people entering the country, whether illegally or through the legal asylum process. But his declaration of a national emergency at the border doesn’t give him the authority to override the Constitution.

The 14th Amendment was adopted after the Civil War to wipe away one of the claims that helped precipitate it: the Supreme Court’s odious 1857 Dred Scott decision holding that even free Black people were not and could not be citizens. The ruling, had it stood, would’ve created a permanent underclass.

The new executive order carries unfortunate echoes of that decision. It could turn about 150,000 children a year into stateless and second-class individuals, deprived of rights and subject to deportation; potentially to a country they’ve never even visited.

The president’s insistence that the U.S. is the “only country in the world” to provide birthright citizenship is flatly wrong. Most countries in the Western Hemisphere do so. More to the point: No country has reaped greater benefits from birthright citizenship than the U.S.

Immigrants have made America great. Some have come to improve their own prospects in life. More have come to create opportunity for their children. And notwithstanding the discrimination they’ve often faced, they’ve enriched the U.S. economically and culturally beyond all measure.

It’s true that the previous administration did a poor job of policing the border. Stepped-up enforcement is a necessity. But ultimately, the best way to dissuade people dreaming of better lives from crossing into the U.S. illegally, and amassing at the border to seek asylum, is not to punish their children. It’s to fix the legal immigration system to create more opportunities for the law-abiding.

The number of visas allotted annually has remained capped at about 675,000 since 1990, even though the economy has since doubled in size; and even as many businesses can’t find the workers they need to grow. Today, the number of job-seekers remains far below the roughly 8 million job openings. Lifting the visa cap will be an essential part of any effort to mend the broader system.

No matter how many deportations the government orders or how many walls it builds, migrants will still be inexorably drawn to the U.S. Such is the magnetic power of the American dream. Better to see that as an opportunity than a threat.