Soon after being sworn in as the forty-seventh president of the United States, Donald Trump signed a series of executive orders designed to reshape immigration law and policy. Within a matter of days, he had signed executive orders that declared a national emergency at the southern border, paused refugee admissions, instructed the Pentagon and the Department of Homeland Security to open an immigration detention centre at Guantánamo Bay, and ended birthright citizenship for some children born within the United States.
Among all these changes, the move to end birthright citizenship has, in particular, become a focal point of national debate. Democratic-led states, as well as multiple civil rights groups, have filed a slew of lawsuits challenging the executive order—and most of the media attention has, for this reason, so far focused on whether it is constitutional.
My focus in this short post is, instead, going to fall on the moral status of this executive order. I want to explore whether there is anything wrong, morally speaking, with the decision to break legal precedent and end birthright citizenship for certain children born in the United States. I will begin by explaining the basics of birthright citizenship and the executive order.
Back to Basics
Birthright citizenship is the legal principle through which citizenship is automatically granted to certain individuals at birth. The United States is one of thirty-three countries that automatically grant birthright citizenship to almost anybody who is born inside of its territorial borders. According to the Fourteenth Amendment to the United States Constitution, “all persons born or naturalised 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 to the Constitution was introduced after the Civil War in order to guarantee citizenship for former slaves and free African Americans. However, it has since been interpreted to include virtually all children who are born in the United States, irrespective of the immigration status of their parents. (The only exception to this are children that are born in the United States to a foreign diplomatic officer with diplomatic immunity, due to the fact that they are not subject to United States jurisdiction.)
Donald Trump’s executive order directly targets birthplace-based citizenship. “The privilege of United States citizenship,” it begins, “is a priceless and profound gift … but the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.” It proceeds to list two categories of people born in the United States, but who will no longer be entitled to birthplace-based citizenship at birth:
People whose mother was unlawfully present in the United States and whose father was not a United States citizen or lawful permanent resident at the time of their birth.
People whose mother was in the United States lawfully, but temporarily (e.g., those visiting on a student, work, or tourist visa), and whose father was not a United States citizen or a lawful permanent resident at the time of their birth.
Importantly, this executive order is not retroactive. Legal challenges notwithstanding, it will apply only to people born in the United States after 30 days of it being signed.
The Ethics of Birthright Citizenship
Now that we are familiar with the basics of birthright citizenship and the executive order, we can begin to consider their moral status. I will start by focusing on the practice of granting birthright citizenship to children whose parents are both citizens and residents of the state in which they are born.
Unless their parents are citizens of a different state that automatically grants ancestry-based citizenship, these children will be born stateless. They will not have a passport; they will not be citizens of any country.
These parents are commonly referred to as resident citizens, and almost every liberal democracy grants citizenship to their children at birth. Indeed, this practice is so common that it often escapes our notice—and, on the small number of occasions when we do think about this practice, it seems so intuitively correct that we tend to not question its moral status. But our intuitions can, of course, be mistaken. And because of this, we must go beyond our intuitions and consider whether there are any arguments that justify this practice.
There are two main ways to do this. The first approach focuses on the precarious legal situation in which the children of resident citizens would find themselves, if the state did not grant them birthright citizenship. Unless their parents are citizens of a different state that automatically grants ancestry-based citizenship, these children will be born stateless. They will not have a passport; they will not be citizens of any country. This is morally problematic because it exposes those children to some significant risks of harm from the moment of their birth. For one thing, these children would be ineligible for a number of major public benefits programmes that are reserved only for citizens. What is even more worrying is that if these children left the state in which they were born, they could be denied re-entry upon returning home given their lack of citizenship. If this were to happen, these children would become stuck in legal limbo—unable to enter the state in which they were born, and yet ineligible to permanently enter another state. Granting these children birthright citizenship is a simple way to guard against these risks of harm.
The second approach, which has been developed extensively by Joseph Carens, focuses on the context in which these children will likely be raised. Consider that when a child is born to resident citizens, it is reasonable to expect that they will grow up inside of that state. After all, this is, statistically speaking, what happens to the strong majority of children born under such circumstances. One of the reasons why this is important, from a moral point of view, is that children who are born to resident citizens will likely develop a strong sense of identity with the political community in which they are born and raised. They will, for example, speak the local language, adopt many of the local customs, practice the local religion, and come to have many of the values and beliefs held within the community. For these reasons, children who are born to resident citizens will, slowly over the course of their upbringing, come to see themselves members of that political community. The corollary of this is that, in time, they will most likely develop a fundamental interest in being recognised as a member of that community. Birthright citizenship is the mechanism through which the state formally acknowledges that these children are prospective members of its community. Without it, these children would be outsiders in the very society to which they belong.
These two lines of argument are compatible with one another, and they highlight two important moral reasons why the state ought to grant birthright citizenship to the children of resident citizens. But here is the important point. Both of these arguments generalise, in the sense that they also explain why the state ought to provide birthright citizenship to some children whose parents are not resident citizens. On the one hand: depending on individual circumstances, there is a risk that children who are born in a state where their parents are not resident citizens will end up stateless if they are not granted birthright citizenship. This is a real concern for the children of asylum seekers who are born in the United States. On the other hand: if someone who is not a resident citizen has been living in the state for a long period of time, it is reasonable to expect that their children will also grow up there. In the United States, there is no shortage of cases of undocumented migrants having raised their children inside its borders. When this happens, the children of these undocumented migrants will form the exact same ties to the political community that are formed by the children whose parents are resident citizens in the United States. And in virtue of this, they will have a fundamental interest in being recognised as members of its community.
Birthright citizenship is the mechanism through which the state formally acknowledges that these children are prospective members of its community.
The Ethics of the Executive Order
What does this mean for Donald Trump’s executive order? The first point worth mentioning here is that although this executive order breaks legal precedent, this is not in itself a reason to think that it is unjust. When thinking about the moral status of this executive order, we instead need to focus on the groups of people who will likely be targeted by it, and what consequences, if any, it will have for their livelihoods. For example: given the arguments outlined just a moment ago, there would be nothing wrong with this executive order if it were only used to target the children of people who were lawfully, but temporarily, in the United States (e.g., visiting on a student, work, or tourist visa). For one thing, there would be very little risk that these children would become stateless given that their parents will return home when their visa expires. And since these children will, most likely, remain in the United States for a short period of time, it is highly unlikely that they will come to see themselves as a member of its political community.
by denying these children birthright citizenship, this executive order will almost certainly create an underclass of people in the United States.
The real problem with this executive order is that it will, in addition to this, target children who are born to undocumented migrants who have lived in the United States for a prolonged period of time. Here we can note two considerations. First: if these children become ineligible for birthright citizenship, then there is a very serious risk that they could become stateless if their parent’s home country does not automatically grant citizenship based on some other criteria—such as ancestry. As I have already noted, this has been raised as a serious concern for the children of asylum seekers who are born in the United States. More generally, the documents that are needed to establish a case for ancestry-based citizenship for a child—such as their parent’s passports and other legal documents—can be damaged, lost, stolen, or thrown away during the course of their parent’s migration journey. This can be a common issue when the parents are either forced migrants or long-term (or, perhaps, intergenerational) residents of the state in which the child is born. When this happens, the child born in the United States might find themselves, in practice, unable to claim ancestry-based citizenship even though they are legally entitled to do so.
Second: given that their parents are long-term undocumented migrants in the United States, it is reasonable to expect that these children will grow up inside of that state. This is important for two reasons. On the one hand: it is likely that these undocumented children, in virtue of spending their formative years in the United States, will form the exact same ties to the United States political community that are formed by the children whose parents are resident citizens. Similarly to the children of resident citizens, these undocumented children will develop a fundamental interest in being recognised as a member of that community—which ought to be recognised through birthright citizenship. On the other hand: by denying these children birthright citizenship, this executive order will almost certainly create an underclass of people in the United States.
Research has found that ending birthright citizenship could significantly increase the population of undocumented migrants in the United States. The reason for this is that without birthright citizenship, the children of undocumented parents will pass their own undocumented status to future generations of children—thereby creating a disadvantaged class of long-term undocumented residents who lack basic rights and protections.
Despite being born within the United States, these people will have to live with the ever-present risk of being apprehended, detained, and possibly deported at a moment’s notice. They will also, among other things, be unable to vote, ineligible for important social services, and unable to fully participate in civic life despite being de facto members of the society in which they were born and raised. In response to this, one could object that the parents of these children bear responsibility for the sorry state into which they are born and raised. After all: if the parents were law abiding and did not enter or remain inside of the United States without the appropriate legal documentation, these children would not have to worry about being stateless members of a political underclass.
Perhaps this is correct. But the crucially important point here is that liberal democratic states are, to be frank about it, not in the business of punishing children for the sins of their parents. Regardless of what can be said about the undocumented status of these parents, it is clear that their children ought not face unduly harsh living conditions simply because they lost out in the lottery of birth. We should be deeply worried by the prospect of this political underclass, which could be avoided by leaving the Fourteenth Amendment to the United States Constitution untouched. And given the rapid pace at which this executive order and others have been signed, we should brace ourselves for difficult times for undocumented migrants as their rights and opportunities are eroded at an unprecedented rate.
Nicholas Carroll is a PhD Candidate in Philosophy at the Australian National University. His research focuses on the history and ethics of immigration and border enforcement—with a special focus placed on immigration detention in Australia and abroad.
Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.