Everything You Need to Know About Birthright Citizenship and the 14th Amendment

(Bloomberg) -- Millions of people owe their rights as Americans to being born in the U.S., thanks to a principle known as birthright citizenship. President Donald Trump, who has made a priority of making it harder for foreigners to enter the country, wants to make it harder for pregnant women to travel to the U.S. for the primary purpose of giving birth to an American citizen.

1. What is meant by ‘birthright citizenship’?

The 14th amendment to the U.S. Constitution, adopted in 1868 and intended to clarify the post-Civil War status of former slaves, begins, “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.” That has been taken to mean that being born on U.S. soil -- even to parents who are just passing through -- guarantees American citizenship to the child.

2. Has this been challenged before?

Many times, especially since the phrase “subject to the jurisdiction thereof” left room for debate over who exactly should qualify for this right. In an 1898 decision, the Supreme Court ruled that a child born in the U.S. to Chinese parents who “have a permanent domicil(e) and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Critics of birthright citizenship say that shouldn’t apply to immigrants living in the U.S. without proper authorization. Some members of U.S. Congress have been trying for years to withhold birthright citizenship from children with two unauthorized parents.

3. What does Trump say?

As a candidate, he said babies born on U.S. soil to parents who are not in the country legally shouldn’t have American citizenship. He called them “anchor babies” because once they become adults, they can petition for their parents to gain legal residency in the U.S.

4. What is he doing?

The Trump administration is tightening visa rules in hopes of stopping foreign women from traveling to the U.S. with the sole purpose of giving birth. U.S. consular officials overseas will be expected to deny visas to such prospective travelers, though how exactly they will identify them is unclear. They’re not supposed to ask all female applicants if they’re pregnant, for instance. The impact of the rule change could be limited, as foreigners from many countries have 10-year visas to visit the U.S., so a pregnant woman intending to travel to the U.S. may have received her visa long ago. In those cases it’s not clear that U.S. officials would be able to prevent her arrival.

5. How many people get to be U.S. citizens this way?

A U.S. State Department official said women visiting the U.S. for the primary purpose of giving birth produce thousands of American-citizen babies each year. And that’s just part of the broader phenomenon of birthright citizenship. The Migration Policy Institute estimated in 2015 that there were 4.1 million children (under age 18) who at birth had both U.S. citizenship and at least one unauthorized immigrant parent -- meaning they potentially could owe their citizenship to the birthright provision. The Pew Research Center estimated that 275,000 babies were born to unauthorized-immigrant parents in 2014, or about 7 percent of the 4 million births in the U.S. that year.

6. Is the U.S. alone?

European countries require a period of residency before bestowing citizenship on those born to foreign parents. But many countries in the Americas, including Canada, Mexico, Brazil and Argentina, have U.S.-style birthright citizenship.

The Reference Shelf

• The Supreme Court’s 1898 decision in United States v. Wong Kim Ark.
• A QuickTake explainer on Trump’s plans for a border wall.
• The Pew Research Center’s 2016 report on babies born to unauthorized immigrants.

To contact the reporters on this story: Laurence Arnold in Washington at larnold4@bloomberg.net;Nick Wadhams in Washington at nwadhams@bloomberg.net

To contact the editors responsible for this story: Leah Harrison Singer at lharrison@bloomberg.net, Lisa Beyer, Bill Faries

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