14th: Amendments, Immigration, and Birthright

Written by Maria B. Bernedo

Ever since his election, President Trump has not stopped when it comes to designing new ways to put the freedoms of Americans under attack. After withdrawing the United States from the United Nations Human Rights Council and retiring the US from the Paris Climate Accord, Trump’s latest destructive proposal comes in the form of a threat to end birthright citizenship, a right protected by the 14th amendment of the US Constitution. The statement, made by Trump in an interview for Axios on HBO on October 30th, has been highly criticized and interpreted as an attack on the constitution, and as such, on the nation itself. The repercussions of omitting birthright citizenship would be extensively detrimental, but to see this we must first understand the origins and purposes of this right.

Let’s first examine the 14th amendment itself:

“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Ratified on July 9th, 1868, the purpose of the 14th Amendment was to grant citizenship, property rights, and legal protection to former and recently freed slaves, as well as their children and descendants. The main purpose of this decree was to protect “stateless” individuals, a result from being born in America but lacking citizenship due to the laws at the time. One could parallel (to a degree) this to undocumented immigrants today, as most have left their country for good and therefore have a civic identity that may be neither American nor of their home country. It is pivotal to remember undocumented immigrants are in a similar situation. In 2014, about 66% of undocumented immigrants had been living in the US for over 10 years, while just 14% had been in the U.S. for less than 5 years. Beyond sales tax, about half of them pay taxes, amounting to $23.6 billion in income taxes in 2015; in addition, 7.8 million undocumented immigrants form part of the entire American workforce either formally or informally. These statistics paint a very specific narrative about undocumented immigrant households, specifically that they are comparable to the working American family yet are subject to diverse political attacks like the challenge to the 14th amendment by President Trump.

While President Trump’s idea was to just end birthright citizenship for the children born of undocumented immigrants, accomplishing such a major alteration to an amendment could potentially open space to challenge naturalization and other crucial aspects of the constitution that have been the premise to hundreds of Supreme Court decisions. The public statement made by the president did not express an intent to go this far, and there is no suggestion that there are secret implications to continue to challenge the constitution. However, to look at the implications of such a move requires that the behavior of the current GOP be analyzed and applied to the potential future contexts that alterations to the 14th amendment could create. Moreso, President Trump’s stated approach of utilizing an executive order rather than going through Congress to amend the constitution reveals volumes about his leadership and belief in the absolute power of the executive branch.

This is not the first time the GOP has made a move to support the idea of ending birthright citizenship. In 2010, Senator Lindsey Graham stated his disagreement with the 14th amendment and his interest in revising the policy. Moreso, Senate Minority Leader Mitch McConnell, and Senators Jon Kyl and John McCain supported Graham’s idea.

Looking beyond the legal and moral breaches, there are tangible consequences for ending birthright citizenship for children of undocumented immigrants, particularly considering the population has a poor and quickly disappearing legal safety net.

Around 3.8 million undocumented immigrants reported having at least one child born on U.S. soil as of 2008, which is a 20% increase from 2003. This statistic reveals that the United States has repeatedly failed to comprehensively support children of undocumented immigrants, especially childhood arrivals. This is the same administration that has worked to end DACA, a decision would leave around 800,000 people brought to the United States as minors with no legal protection against deportation and no ability permits. It is important to remember that, while DACA represents some sort of protection for its recipients, it does not in any way present a path towards citizenship. Moreso, considering DACA’s restrictions and prerequisites for application, it is important to consider that DACA is unable to protect all childhood arrivals even amidst its slew of benefits. Whether be it due to the economic inability of the applicant to go to school (as being enrolled in or have finished high school or an equivalent is a requirement for recipiency), the prospective recipient being too old to fit the deadline (more than 31 years as of 2012), or being an arrival from after the 2012 deadline (who do not qualify for DACA at all).

DACA is beneficial but flawed, and no political side seems eager to follow through on necessary immigration reform. Ever since the passing of DACA, Republicans figured they acquired a bargaining chip and Democrats decided this half-win was as good as its gonna get. The idea of creating a path towards citizenship for childhood arrivals has not since been revisited, and it is evident that we must do better.

There is another ideology at the core of this conversation: the argument that undocumented immigrants should be treated respectfully because they pay taxes, or take job posts no American would be willing to take is a vicious one. Undocumented Immigrants are not a gem for the crown of the “American Experience.” They are not here to expand the selection of cultures that Americans can choose to benefit from a la carte. Their value as people and the policy designed regarding them should not be premised on their willingness to be treated poorly in unwanted jobs or their contributions to the North American economy. Undocumented Immigrants are often escaping countries destroyed or diminished by American intervention, and pursuing a life amidst American exceptionalism that is spoon fed to developing nations the world over. Immigrants are reasonable and perceptive people who have deemed their circumstances to be dire, weighed the benefits, and journeyed to find better lives for themselves and their families. Trump’s intention, since the start of his presidency, has been to spread a xenophobic rhetoric that expands beyond policy. The rise of hate crimes since his election is only further proof that the problems some Americans believed to be on the mend were actually just waiting for large-scale validation from a technically evasive but unrelentingly anti-immigrant leader. Trump’s intentions with the 14th amendment are evidence of a bigger problem: America refuses to extend empathy to the people it has forcibly and inextricably tied to its own actions and history.

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