Do No Harm: Why Ending Birthright Citizenship Puts ALL Babies and Children at Risk

Nov 18, 2024

“If you don't believe in miracles, perhaps you've forgotten you are one.” – Karen Salmansohn

The miraculous moments of an infant’s life are precious and filled with possibility. They should mark the beginning of a child’s future defined by growth, opportunity, and care. Yet, for the 3.6 million babies born in the United States, President-elect Donald Trump is proposing to change the birth process for every single baby in this country by eliminating “birthright citizenship.”

Trump’s “Day 1” promise threatens to turn the hopeful beginnings of birth into a bureaucratic quagmire of bureaucracy for all 3.6 million babies every year, delays in obtaining citizenship, and increased costs associated with legal expenses to file for citizenship status at best. At worst, a shocking number of children will be denied citizenship, deemed stateless, and pushed into the shadows of society with lifetimes of uncertainty, exclusion, and harm.

At its core, calls for ending birthright citizenship, including that by President-elect Trump, are framed as changes to immigration policy. However, the reality would require a constitutional amendment or a radical overturn of Supreme Court precedent and over 150 years of administrative law and practice with respect to birthright citizenship.

The Constitution’s Citizenship Clause

The Citizenship Clause in the Fourteenth Amendment was enacted in 1868, and for 156 years, it has protected every single child born in this country from being subjected to the two-tiered caste system that denied Black people the fundamental right to citizenship as a result of the Supreme Court’s most infamous Dred Scott decision in 1857.

Section 1 of the Fourteenth Amendment reads:

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

According to constitutional law scholar Garrett Epps:

After the crime of slavery, the Framers of the Fourteenth Amendment wanted to create a new nation in which there would no sub-humans, no inferior caste that could be sold onto plantations or herded into camps. The citizenship clause is a key part of the structure they built.

Consequently, birthright citizenship ensures that every child is protected from discrimination at birth. The process is simple, automatic, and free from discrimination.

A 6-2 majority opinion in the Supreme Court decision in United States v. Wong Kim Ark (1898) provided additional clarity. Justice Horace Gray wrote that the Fourteenth Amendment:

…contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.

New Attacks on Birthright Citizenship

However, President-elect Trump would seek to eliminate citizenship by birth or jus soil (Latin for “right of the soil”) and move to a system where citizenship would solely be determined by blood or jus sanguinis (Latin for “right of blood”). First, legal analysts Neal Katyal and Sherrilyn Ifill explain how Trump’s proposal would likely be declared unconstitutional in the following video to MSNBC’s Jen Psaki.

However, Ifill explains that such a result is not certain, as Trump’s goal would be to ask the Supreme Court to reinterpret the Fourteenth Amendment’s Citizenship Clause and overturn its long-standing decision in United States v. Wong Kim Ark (1898).

Trump argues such a radical and fundamental change to the Constitution and literally centuries of practice in this country would address his concerns about “birth tourism,” which would be better addressed in other ways. But the truth is starkly different: there is no evidence that eliminating birthright citizenship would reduce immigration.

Instead, it will negatively impact and harm one group of people in this country: BABIES.

Ending Birthright Citizenship Punishes Innocent Babies

The change to deny citizenship status to some children born in this country would violate a basic moral tenet of our country, which is to not punish innocent people for the perceived violations of law by others. Babies did not choose either their birth or their geographic location. It is universally recognized as unjust to impose penalties on those who did not commit wrongdoing. Children are viewed as vulnerable individuals deserving of protection, not as extensions of their parents’ actions or inactions.

Supreme Court Justice William J. Brennan has argued:

Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.

Justice Lewis F. Powell wrote in another Supreme Court decision:

[V]isiting…condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the…child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility and wrongdoing. Obviously, no child is responsible for his birth and penalizing the…child is an ineffectual – as well as unjust – way of deterring the parent.

And yet, eliminating birthright citizenship as a response to the race, ethnicity, or immigration status of immigrant parents would single babies out for punishment that would have devastating and life-long implications to their lives, including the status of statelessness that documentary photographer Greg Constantine discusses in this TedX video.

Eliminating birthright citizenship would recreate Dred Scott’s two-tiered caste system that the Fourteenth Amendment had eliminated. Such a system could be manipulated to exclude children based on what Amanda Frost explains are factors such as “race, ethnicity, religion, immigration status, social class, or former condition of servitude,” and push babies into a status of statelessness in which they have no country to call home.

This new class of stateless children would be condemned to live in the shadows of society without the protections and opportunities that citizenship provides. These children would be subjected to life-long discrimination, exploitation, and the denial of all types of health, education, nutrition, housing, and other types of benefits and services throughout their lives.

Epps adds:

…the children have committed no crime at birth; have violated no law; have not transgressed the implied promise of a visa. To punish babies, much less to proscribe and entirely outlaw them, because of the perceived sins of their parents is alien to our moral and ethical tradition. Guilt is not hereditary; it is individual. We do not impose legal disabilities on the children of felons, for example, no matter how heinous their parents’ actions. The conscience revolts at the idea, and the Constitution itself rejects ancestral guilt as a basis for policy.

Ending Birthright Citizenship Harms ALL Babies

The proposed change would also go beyond negatively impacting children who would be denied citizenship for the first time, as it would harm all children born in this country.

Eliminating birthright citizenship would be radical and depart from over 150 years of the rule of law, regulation, and practice in which birth itself determines an infant’s citizenship status. It would subject every single child born in this country with additional paperwork burdens proving their parent(s) own citizenship status at the time of birth, bureaucratic delays, and costly legal barriers.

As attorney Margaret Stock explains:

Proving one’s parents’ citizenship or immigration status at the moment of one’s birth can be difficult, because apart from the simple birthright citizenship rule, U.S. citizenship and immigration laws are complex, and a parent’s status is often a moving target.

As every baby in this country awaits a citizenship determination from some currently undefined and unstaffed federal bureaucracy, they would be in limbo status and subjected to the denial of essential services they need to survive, develop, and thrive. Rates of poverty, uninsurance, hunger, homelessness, poor development, and child abuse would undoubtedly rise at the most vulnerable, critical, and important moment of their lives. These are not luxuries – they are lifelines for the 3.6 million babies born in the United States every year.

Furthermore, eliminating birthright citizenship would create legal quagmires and uncertainty for large numbers of other newborns and children and create enormous legal and bureaucratic issues for families, government, and society, such as:

Determining the citizenship status – citizen, legal immigrant, or undocumented – of parent(s) at the moment of a child’s birth;
The paternity and citizenship status of an unwed father;
Disputes over the paternity status of a baby;
The status of a baby given up for adoption;
The status of a baby who was conceived via in vitro fertilization (IVF) or intrauterine insemination (IUI);
Determinations in cases of birth via surrogacy;
The determination of a baby’s status with same-sex parents;
The establishment of a new bureaucracy or agency to make such determinations;
The appeals rights available to a baby or child;
The citizenship of a child whose parents failed to apply for citizenship of the child;
The eligibility status of children for programs like Medicaid, WIC, or the Child Tax Credit, who are in limbo awaiting a citizenship determination; or,
The plight and future of babies and children who would be denied citizenship status, and thereby, might be subjected to deportation or become stateless.

Proponents of ending birthright citizenship have failed to outline how any of these immense challenges would be addressed. This has the potential to significantly increase chaos, legal and bureaucratic complexity, and thereby, legal and bureaucratic costs and delays to families and taxpayers in this country.

How would any of this – the denials of citizenship, the increase in statelessness, the denial of services, and the increased legal and bureaucratic complications and expenses – possibly be good for either the next generation of children or our nation’s future?

Birthright citizenship is not an immigration loophole; it is a safeguard for every baby born in the United States, rooted in the principle that no child should suffer from harm, discrimination, or circumstances beyond their control. It helps fulfill the promise that our nation chooses not to impose harm on children, but instead, protects them from harm. In the case of birthright citizenship, it is life-changing.

Babies Deserve Protection, Not Punishment

We would urge President-elect Trump to listen to constitutional experts, talk to people who specialize in babies and child development, and reconsider the idea of trying to overturn birthright citizenship, whether by constitutional amendment, legislation, or executive action. Harming babies should never be a priority. It would result in:

Statelessness for Vulnerable Children: Children whose parents cannot adequately document their own legal status or who encounter bureaucratic errors or delays would face statelessness, living in legal limbo without access to health care, education, or job opportunities.
Universal Bureaucratic Delays: All parents, including U.S. citizens, would be required to document their own legal status and navigate a new bureaucratic process to confirm their child’s citizenship. These delays would disrupt access to critical programs like Medicaid, the Children’s Health Insurance Program (CHIP), WIC, early childhood education, immunizations, and other critical services for babies, which are vital during their most vulnerable developmental stages.
Increased Legal Costs for Families: Many families would need to hire attorneys to navigate this new system of citizenship adjudication, adding financial burdens during a time when resources should be focused on the health and well-being of newborns.
Disproportionate Impact on Marginalized Communities: Families with fewer financial resources, limited literacy, or language barriers would be disproportionately affected, exacerbating inequalities and pushing the most vulnerable children further into the margins of society, particularly Hispanic families.

Denying birthright citizenship would harm not just immigrant children but all children born in this country.

As policymakers debate birthright citizenship, they must confront a fundamental question: Should children — innocent and defenseless — bear the burden of adult decisions? The answer, unequivocally, is no.

Babies deserve our protection, not punishment. We must reaffirm that promise. The First Focus on Children accompanying policy brief, entitled In Harms Way: The Consequences of Denying Birthright Citizenship for America’s Children and Our Future, concludes:

Every child born in the United States deserves a chance to thrive and belong. This is our moral duty, and it is theirs by right.

If you would like to help ensure that children and their needs, concerns, and best interests are protected and no longer ignored by policymakers, please consider joining us as an “Ambassador for Children” or becoming a paid subscriber to help us continue our work on behalf of children.