Michael S. Divine
As I am writing this article the country of my birth, the United States, is in the process of choosing its next president. Unfortunately, one of the leading candidates is a provocateur, bent upon repudiating the human rights of minority groups. The candidate has targeted, among others, the U.S. born children of undocumented and out-of-status migrants (here after “irregular” migrants), whose right to U.S. citizenship he promises to end once elected (1). While it is uncertain whether he would revoke the citizenship of the U.S. born children of irregular migrants who have been here for many years, he has made it clear that all newly born babies will be declared illegal, and expelled.
The candidate’s opposition to birthright citizenship (jus soli), or citizenship based upon one’s place of birth, is very worrisome. Citizenship is a practical requirement for the securing of many human rights protections. Although international law requires States generally protect the human rights of all persons within their borders, States tend only to ensure full civil, political, economic, and social rights to their own citizens. In the United States, for example, noncitizens are currently prohibited from participating in federal elections which, consequently, select the officials charged with the protection of their rights. Human rights protections through diplomatic and consular channels may be less effective, and are generally not available if no State recognizes the petitioner as a citizen or national (2).
But who cares, I mean, what’s the worst that could happen? Eliminating birthright citizenship is a very grave threat, all the more so when considering that children are the subject of the attack. Extinguishing a child’s right to citizenship is a precursor to the violation of other human rights, and would reduce or eliminate the child’s access to basic government services like health care and education. The children of irregular migrants would, themselves, become irregular, meaning that they would live in constant fear of discovery, and may be compelled to accept squalid housing conditions. Their employment would be limited to the informal economy, and they would be far more likely than citizens to be subject to economic exploitation by employers. When their rights are violated, they may decline using police or judicial systems because of concerns about deportation. If discovered and taken into police custody, family members may be unable to raise questions about the nature, condition, or duration of their detention due to the risk of being discovered themselves. The child may then be deported, removing them from their family and support system to place them, instead, in a country they have potentially never been to, and where they may not speak the native language.
Does the law permit what the candidate proposes? In a word, “no.” United States law, and specifically the Fourteenth Amendment of the U.S. Constitution, guarantees that anyone born within U.S. borders, excepting the children of diplomats and hostile armies, is a citizen of the United States. Recognition of birthright citizenship in the U.S. traces its roots back to the British common law, and has applied since the U.S. was founded (3).
International law similarly protects a right to citizenship. The Universal Declaration of Human Rights, which the United States was instrumental in drafting, forbids arbitrarily depriving anyone of nationality, and directs that everyone must have a right to a nationality. Because children are particularly vulnerable to the harms associated with the lack of a nationality, the United Nation’s Covenant on Civil and Political Rights commands that children must be afforded the right to acquire one. The same sentiment is echoed by the United Nation’s Convention on the Rights of the Child, which provides that children “shall be registered immediately after birth and shall have the right from birth to a name, [and] the right to acquire nationality … in particular where the child would otherwise be stateless.” The United States is party or signatory to both of the aforementioned treaties, and may not violate their object or purpose.
Ostensibly, revoking birthright citizenship would require a constitutional amendment. U.S. presidents, however, have on numerous occasions used their executive authority to circumvent laws when implementing immigration policies. In 1987, for example, President Ronald Reagan announced, without any supporting action from the Congress, that minor children of irregular migrants granted amnesty a year earlier would be protected from deportation. In 1990, President Bush implemented a policy prohibiting the deportation of family members of immigrants in the process of seeking residency, again without legislative authority. President Obama has now picked up the same baton, and recently issued an executive order forbidding the government from targeting irregular migrants who are the parents of citizen children, have been in the United States since 2010, and do not have a criminal record (4). Though previous extra-legal actions have supported human rights protections of irregular migrants, executive authority is a double-edged sword, and could feasibly be used to undermine the same protections.
There is a friction between citizenship laws, which have as an aim the exclusion of certain persons from the responsibility of a State, and human rights laws, which have as an aim the protection of all persons by virtue of such person’s existence. Mediating the friction requires a delicate and nuanced approach: heavy-handed policies could cause harm to millions of families, and would irreparably soil our national conscience. If the candidate is reading this, I plead he reconsider the consequences of his position on birthright citizenship, and choose instead to be a protector of children.
(1) See, Epps, Garrett. The Problem with Challenging Birthright Citizenship. September 1, 2016
(2) Though the terms “citizens” and “national” are legally distinct, they both connote a corresponding State’s responsibility and jurisdiction, and may be understood as functionally similar for the purposes of this article.
(3) For an exceptional discussion on the lineage of birthright citizenship in the U.S., see Hon. Justice Horace Gray’s Opinion in United States v. Wong Kim Ark, 18 S. Ct. 456 (1898).
(4) Chemerinsky, Erwin. Op-Ed: Of Course Obama’s Immigration Orders are Legal. January 21, 2016. LA Times.
For more on this topic, see Weissbrodt, D. and Divine, M. (2015) Unequal Access to Human Rights: The Categories of Noncitizenship. Citizenship Studies 19 (8), 870-891.
Michael Divine is a U.S. based attorney, writer, human rights activist, and is the co-author with Professor David Weissbrodt of Unequal Access to Human Rights: The Categories of Noncitizenship. He has served as a Human Rights Fellow, and was the recipient of the University of Minnesota’s Human Rights Law Award in 2012. He resides and practices law in Saint Paul, Minnesota.