Executive Order to Repeal Birthright Citizenship Would Be Shoddy Policy, as Well as Unconstitutional

There is no rest for the weary when it comes to President Trump and his anti-immigration policy. Since his election in 2016, his stance on immigration has gone well beyond undocumented workers, or alternatively illegal immigration. He has been on the offensive with multiple types of legal immigration, including chain migration, immigrants here through Temporary Protected Status and DACA, low-skilled immigrants, and high-skilled immigrants here on H1-B visas. This week, he has found a new target: birthright citizenship.

Birthright citizenship, also known as jus soli, is the principle stating than anyone who is born in the territory of a given nation-state is offered the right of citizenship. In an exclusive interview with Axios, Trump claimed that the United States is the only nation with birthright citizenship. This is simply untrue. Birthright citizenship also exists throughout much of Latin America, Canada, Pakistan, and Lesotho. Limited versions of birthright citizenship are extended in such countries as Australia, France, Germany, Ireland, Morocco, Spain, Thailand, and United Kingdom. This is to say that the idea of birthright citizenship is hardly unique to the United States, especially since it finds origins in English common law, and ultimately ancient Greek law. Trump thinks that he could simply repeal the Constitution with an executive order. Forgetting for a moment that executive order is not the way to repeal a constitutional amendment, the plain language of the Fourteenth Amendment is clear:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

The Fourteenth Amendment was significant because per the Naturalization Act of 1790, citizenship was granted only to white people. Slaves were counted as three-fifths of people (Article I, Section 2, Clause iii) so that the southern states could have greater congressional representation. Fortunately, the Thirteenth Amendment undid that gross injustice. This makes the Fourteenth Amendment because race or ethnicity did not prohibit one from becoming a U.S. Citizen, thereby making the American dream that much more of a reality. Trump not only has to contend with the plain text of the Constitution or the fact that the majority of the legal community views birthright citizenship as a right afforded by the Constitution. The Supreme Court actually affirmed that right in United States v. Wong Kim Ark (1898). See more here for the constitutional aspects of the debate.

My concern is that Trump does not understand the limits of the executive branch. This was the same President who tweeted that we should revoke citizenship for flag burners, although to reiterate, that's not how the Fourteenth Amendment works. I am not sure whether the President is showing blatant disregard or is simply ignorant of constitutional procedure, but what I can say is that we should be worried about more than the constitutional aspect. There are a litany of unintended consequences of what would happen if President Trump were successful on repealing birthright citizenship.

Unintended Consequences of Birthright Citizenship Repeal

• Lower economic productivity and GDP. I can see this playing out one of two ways. One scenario is that most of those granted birthright citizenship stay, but do so as undocumented immigrants. This will cause lower economic productivity because legal status keeps people better connected to the economy (as opposed to going to the underground economy), as has been observed with immigrants here through TPS or DACA. Under this scenario, Trump would most probably create a new class of illegal immigrants. The Migration Policy Institute estimates that repeal would do just that: double the undocumented worker population by 2050. The second scenario is that people would leave (more likely for high-skilled immigrants to do so), which would lower the GDP. This is important because more immigration increases economic growth. 
• Increased hospital surveillance and enforcement costs. If implemented, this would be Big Brother intruding at an astounding level. In order to effectively enforce this law, the federal government would have to create and maintain a database (Sears, 2014). This is currently done at the local level. Aside from the transition costs from a decentralized system, parents would immediately have to produce citizenship papers at the child's birth. In 2011, the Left-leaning Center for American Progress found that it would cost $600 per child along with weeks of the Department of Homeland Security assessing and verifying the validity of those documents. With an average of nearly 11,000 births a day (CDC), this would be a costly bureaucratic nightmare. 
• Less immigration integration. A major literature review from the National Academies of Sciences (NAS) looked at how birthright citizenship helps with immigrants integrating in the host country. The conclusion was that birthright citizenship was one of the most powerful mechanisms for political and civil inclusion, which means that revoking it would destabilize social cohesion. The OECD follows suit in the NAS' findings. I discussed this a few years ago, specifically with regards to European nations having difficulties successfully integrating Muslim immigrants, thereby creating resentment. 
• Creating a disenfranchised group of people. Repealing birthright citizenship would create a subclass of people who would have their quality of life greatly diminished, as is clear in the Dominican Republican case study (also see Fix and Van Hook, 2010). In contrast, birthright citizenship results in a lower fertility rate and healthier immigrants (Avitabile et al., 2014; Gathman et al., 2014), as well as reducing return migration (Sajons, 2016) and improving youth development by closing the education gap between immigrants and natives (Felfe et al., 2018).

If Trump is successful in this endeavor, he will unravel the Constitution while eroding the immigration that has helped build this country to what it has become today. I hope that this doesn't work and that Congress could fix the broken immigration system, but I won't exactly hold my breath while I wait for Trump to see sense on the immigration issue.