The perils of birthright citizenship

OPINION:

On April 1, the Supreme Court will hear oral arguments on President Trump’s Executive Order 14160, ending birthright citizenship for children of illegal immigrants. In the decades-old debate over immigration, the issue of birthright citizenship stands out as the most contentious.

Current law on citizenship is based on interpretations of the 14th Amendment to the Constitution, which says, “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.”

This amendment was specially created to ensure that freed slaves and their children could not be denied citizenship after the Civil War.

Created in 1868, the 14th Amendment provided a constitutional anchor to the Civil Rights Act of 1866. Drafters and sponsors of both were clear that their intent was to grant citizenship to those owing no allegiance to a foreign power.

Citizenship was further refined (and complicated) by the Supreme Court’s 1898 ruling in United States v. Wong Kim Ark. Wong, born in the U.S. of legal Chinese residents, was denied entry into the U.S. when returning from a trip abroad.

The resulting Supreme Court decision affirmed Wong’s citizenship and that of all children born in the United States. Noteworthy is that his parents had not become citizens, and that the Chinese Exclusion Act of 1882 prohibited it. This decision has been established as law since 1898.

The ruling never contemplated conferring the benefits of citizenship on the offspring of those who were illegally present in the United States and may be of questionable loyalty, or whose political sympathies are antithetical to our democracy. Today’s issues of birth tourism and international surrogacy diminish the spirit and intent of the congressional sponsors.

Birthright citizenship has exceptions. Children born to foreign diplomats and children born to enemy forces during a hostile occupation of the U.S. are excluded. In an interesting dichotomy, children born of legally accredited diplomats are excluded, but children born of illegally present individuals are not.

Birthright citizenship has spawned a huge business ecosystem and brought with it equally huge abuses. U.S. citizenship can even be obtained without entering the continental United States. Residents of Guam and the Northern Mariana Islands, both U.S. territories, are, upon birth, automatic U.S. citizens.

The government of the Northern Mariana Islands has reported a significant increase in births to Chinese residents. Under an unusual agreement with the Biden administration, Chinese travelers to the Northern Mariana Islands are allowed to enter without a visa.

In 2017 and 2018, more children were born to Chinese mothers in Saipan, the capital of the Northern Mariana Islands, than to locals.

Since 2009, more than 3,000 Chinese children have been born in Saipan. These children are automatic American citizens with the right to eventually live in the United States, obtain a passport, vote, have a Social Security number, run for public office and later sponsor their parents for residency.

They then return to China to live with U.S. passports in hand.

China does not recognize birthright citizenship, and most of Europe has a limited form of it, requiring that the child have at least one parent who is a citizen or legal resident of the country of birth.

The United States Conference of Catholic Bishops, along with other immigration advocacy groups, has entered the fray. The bishops strongly support absolute birthright citizenship. Interestingly, the Vatican City state does not allow for it. If a child is born in the Vatican City state, then the child is recognized as an Italian citizen only.

Gaming our Constitution should not allow for automatic U.S. citizenship and the lifetime of benefits that flow from it. Given the millions of foreign tourists, students, illegal immigrants and business professionals entering the U.S., a national security situation is unfolding, and a commonsense solution is urgently needed.

The Supreme Court must craft a decision that curbs the current excesses of birthright citizenship. When the 14th Amendment was established, the issues of birth tourism, illegal immigration and international surrogacy could not have been imagined. All these diminish the meaning of citizenship and create national security vulnerabilities.

Lawyers will soon argue legal definitions, framers’ intent and constitutional precedent. The interpretation of the phrase “subject to the jurisdiction thereof” will be crucial.

The fact remains that American citizenship is the ultimate prize and has become a top international commodity. The Supreme Court could redefine citizenship in a more restrictive way to better conform to the original intent of the 14th Amendment. Consideration of the parents’ legal status and jurisdiction will be key.

The court must find a commonsense solution. We can all agree that the meaning, essence and privilege of citizenship are being abused and must be protected.

• Emilio T. Gonzalez is a retired U.S. intelligence officer who has served in senior positions in the U.S. Army, on the National Security Council and in the Department of Homeland Security.