One virtue of birthright citizenship is simplicity. Children born in the United States are citizens and the government does not need to inquire about either parent.
But for the sake of discussion, let’s assume that the Constitution does not provide birthright citizenship in all cases. Questions are raised that do not have a simple answer.
Let’s start with questions under current law. An example that everyone seems to agree with is that the ambassador’s child is not a natural citizen. The answer is simple noright? It’s not that fast. What happens if the ambassador has children with a US citizen? Will the child become a citizen? In other words, does a birthright “exception” apply only if both the father and mother were part of a foreign diplomatic envoy?
During discussions regarding the amendment to Article 14, the status of diplomats was often discussed. However, I think it is assumed that the ambassador will marry a woman from his home country. Many states had banned misunderstandings, further limiting the ability of some ambassadors to marry American women. Certainly, diplomats have fathered American women and children for many years. Were those children born? Children born to unmarried couples are generally considered non-gi sloppy or bastards. If the mother is a citizen and the father is an ambassador, will the bastard receive birthright citizenship?
Second, if we leave the example of an ambassador, how would citizenship work if one parent was a citizen and the second parent was not a citizen? Morales Santana The council found that one rule could not be applied when the mother was a citizen, and another set of rules could not be applied when the father was a citizen. Judge Ginsburg found that such a different treatment violated the Equality Protection Clause of the Fifth Amendment (even if such provisions in the Constitution actually existed), but my question is a bit different. Without a statutory enforcement law, how do citizenship clauses apply to children with one parent, with a citizen and non-citizen? I don’t think there’s a good answer. I think people in the 1860s assumed that non-citizens would marry someone of the same status, but I am sure there are exceptions.
Third, assuming that Article 14 does not grant birthright citizenship, what happens to an illegal alien child who has been recognized as some form of legal existence, such as DACA? Will temporary protection statutory grants overcome presumptions of birthright citizenship for the children of other removable individuals?
Fourth, do children of those seeking asylum qualify for birthright citizenship? Scholars who oppose birthright citizenship focus on concepts such as loyalty and loyalty. However, those seeking asylum have affirmatively rejected his loyalty to his hometown. Certainly, asylum seekers fear that if he returns to his home country he will be subject to persecution. Will the asylum claim provide the loyalty necessary to justify birthright citizenship?
Fifth, how does birthright citizenship interact with surrogacy? Is citizenship determined based on the status of the mother carrying the child to the term? Or the woman who donated eggs? The man who donated sperm? and so on. I am sure other countries that lack birthright citizenship are considering these questions.
These questions bring me back to the beginning of the Dapa lawsuit. in December 2014I wrote:
It will be executed on Nfibv. Sebeliusmedical lawyers suddenly had to become constitutional experts, and constitutional lawyers had to become medical law experts. My sense (from personal experience) is that with rare exceptions, neither group was completely successful. Currently, there is a similar dynamic in immigrant enforcement behavior. Immigration lawyers are asked to view the scope of the president’s obligation to be aware that the law is faithfully enforced, and constitutional lawyers are asked to consider complex immigration laws. At this point there is still a considerable gap between the two.
I am not a publicly professed as an immigration law expert, but I have written extensively about Ina’s complexity over the years. The background helped me to take a little more neat look at the current discussion of birthright citizenship.
However, I have found that many scholars writing about the constitutional issues underlying birthright citizenship do not take into account the technical issues of immigration law entirely. Conversely, immigration law scholars do not fully consider all of the competing constitutional arguments. People are simply assuming that the ones they agree with are clearly right. I still think the correct answer is that the amendment to Article 14 provides birthright citizenship, but I am free to acknowledge that there are some competing arguments and complexities.
