Weekend Update: Birthright Citizenship

Last week, Trump issued an Executive Order eliminating birthright citizenship (although we all know that the 14^th Amendment to the Constitution literally says that anyone born in the United States is a citizen). His EO doesn’t eliminate birthright citizenship (his signature – even with a Sharpie – doesn’t enhance its authority), but it has begun a discussion of the citizenship of babies born in the United States from this point forward. (It doesn’t look backward to renounce the citizenship of anyone, although the language of the EO would have denied citizenship to Kamala Harris and thus prohibited her from running for President. Strange how that worked.)

Today I want to talk about the practical implications of such a policy.

The first thing to know is that birth certificates are issued by the states. The processes may be slightly different from state to state, but one consistent fact is that generally speaking, no one does anything to check the citizenship status of the parents when a birth certificate is issued.

Here’s a description of the standard process:

Information Provided by Parents: When a baby is born, the hospital (or the parents, in the case of home births) typically fills out a birth certificate worksheet. This form asks for information about the baby and the parents, such as names, dates of birth, and places of birth.

No Requirement to Verify Citizenship: I couldn’t find any state that requires parents to provide proof of citizenship or immigration status to complete the birth certificate. The information is taken at face value unless there are unusual circumstances that require additional documentation (e.g. if there is a question about parental identity). A few years ago, Texas tried to add an immigration-status-of-parents section to their birth certificate form, but the courts struck it down as a violation of the 14^th Amendment.

Focus on the Child's Birthplace: The primary factor for issuing a birth certificate is the child's place of birth. If the child is born on U.S. soil, they are automatically considered a U.S. citizen under the 14th Amendment (with very few exceptions, such as children of foreign diplomats).

Optional Documentation: In some states, parents may need to show certain documents, such as a government-issued ID, but these are used to confirm the accuracy of the information rather than to determine citizenship.

So to be clear: If this unconstitutional EO is somehow magic-wanded into reality by a compliant Supreme Court (can you imagine such a thing!), 50 states plus assorted territories would have to change the way they issue birth certificates. It would fall on hospital or state government staff to determine citizenship as part of a formerly routine process of “show me your ID” that provides information for an application for a certificate of live birth. This would require changing procedures, including generating new forms, providing legal training to the clerks involved in this process, and so forth. It would be a breeding ground for corruption and abuse, as underpaid clerical workers would have the power to determine who gets to stay in the country and who has to leave.

As a side question – how many people who were born in the US could provide proof of citizenship if they were asked while they were on their way to the grocery store or to pick up their kids from school? The only documents that prove citizenship are a birth certificate or a passport. Two members of my family – my mother and me – had to obtain birth certificates as adults. In my mother’s case, the courthouse in Wharton County Texas (where she was born) had burned and all records were destroyed. In my case, my parents somehow lost my birth certificate and I had to apply to the District of Columbia (where I was born) to get a replacement certificate when I got married. Which Americans are least likely to have such documentation? Poor people, homeless people, people trying to escape abusive relationships — in short, the very people Trump cares about the least. Kick ‘em all out!

I don’t carry my birth certificate around with me. Do you? Trump 2.0 has already begun traffic stops in Arizona, asking for proof of citizenship. Some agents have attempted to enter schools in pursuit of — somebody. ICE has jurisdiction within 100 miles of any land or maritime border. In these areas, federal border and immigration agents have the power to board public transportation or set up interior checkpoints and to stop, interrogate, and search children on their way to school, parents on their way to work, and families going to doctor’s appointments or to the grocery store – all without a warrant or reasonable suspicion. This means me and many of you. Do you think brown and black people are stopped more often than white people? Of course they are. Will this intimidate black and brown people enough to make them stop going to work or to school, to church or to the bank or to the library? Is that the point?

Two of the five people who are in an ESL class I teach at a local literacy program were not in class on Tuesday. They are both immigrant women of color. I don’t know their immigration status because it’s none of my business. I wonder if I’ll see them next Tuesday.