President Trump and some members of Congress have been working on changes to birthright citizenship: the rule that everyone born in the United States is automatically a citizen. Under the 14th amendment to the U.S. Constitution, everyone born in a state is a citizen of their state, and of the United States.
People born in Puerto Rico are U.S. citizens by birthright — statutory birthright, based on laws made by Congress. The new administration’s efforts to change birthright citizenship won’t change that. But it could affect Puerto Rico and Puerto Ricans, either now or in the future, in a variety of ways. It can be difficult to predict what the consequences of this change might be, but we can speculate on some possibilities.
The new rule
The 14th Amendment to the U.S. Constitution says that anyone born in a state of the United States is a U.S. citizen. It’s that simple. An executive order by President Trump, as well as a bill called the Birthright Citizenship Act introduced in Congress, said that this is the case only if at least one of the child’s parents is a U.S. citizen, a legal permanent resident with a Green Card, or a member of the U.S. military.
The executive order was struck down by the Supreme Court. The president responded with two more executive orders. One said that the agencies of the U.S. government would not issue citizenship documents to babies born in the states who didn’t meet the criteria from the original executive order. The other listed specific groups of people whose children would not receive birthright U.S. citizenship, including “enemy aliens” and employees of foreign governments. There was also a special emphasis on “birthright tourism.”
These were followed by a bill called “End Birthright Citizenship in the Territories,” which was introduced in Congress.
What about Puerto Rico?
The law that gives birthright citizenship to people born in Puerto Rico is not the 14th Amendment. It is a separate law — in fact, two laws. If these laws are not also changed, it is conceivable that people born in Puerto Rico would continue to have statutory citizenship regardless of the status of their parents. If this were the case, then Puerto Rico might become the most desirable place for undocumented immigrants.
On the other hand, the rule does not permit birthright citizenship for COFA migrants. If someday Puerto Rico became independent, birthright citizenship could be off the table for the children of citizens of the Republic of Puerto Rico, even if there was a Compact of Free Association with the United States.
These are just the uncertainties that are obvious on the face of the rule.
Other possible consequences
If the law changed for Puerto Rico as well as for the states, hospitals in Puerto Rico would be required to track the immigration status of babies born in Puerto Rico. States are already saying that they can’t afford to do that. Puerto Rico, with a fragile and inadequately funded healthcare system, would be hard pressed to manage it.
Spanish-speaking people in the states may find that hospitals will choose to demand proof of citizenship on the maternity ward, possibly before helping with birth certificates as they currently do for all babies born in the United States. There have already been cases in which people with documents from Puerto Rico have found that their documents were not accepted as proof of citizenship. New training requirements will be essential, but we can imagine that the already complex process of getting healthcare will become more complex.
The worst-case scenario
If weakening birthright citizenship goes beyond the current concerns about “birthright tourism,” the U.S. citizenship of Puerto Ricans could be affected. Since the current U.S. citizenship of people born in Puerto Rico is statutory and not guaranteed under the U.S. Constitution, it could be rescinded by Congress at any time. If questions about the birthright citizenship enshrined in the U.S. Constitution take hold, attitudes toward birthright citizenship for Puerto Rico could also change. It could be a slippery slope.
The most likely outcome
The Supreme Court already ruled against the first executive order and the ACLU has filed a suit against the new ones. Neither of the bills to change or end birthright citizenship has gained support. The most likely outcome is that nothing will change. People born in states will still have birthright citizenship under the Constitution, and people born in Puerto Rico will still have statutory citizenship under laws passed in 1917 and 1940.
To us, it’s just a reminder that U.S. citizenship is only guaranteed with U.S. statehood. Historically and constitutionally it is about the responsibility of Congress to recognize, practice and respond to Puerto Rico’s democratic self-determination. Puerto Rico has voted for statehood in every status vote held in the 21st century. But Puerto Rico can’t make this decision alone. Congress must decide whether three million Americans will have the rights of citizens of the republic under the Constitution.
One response
I think active pursuit of U.S. citizen status revocation for Puerto Ricans will come in due time under this administration. 47 has no great love for the island and its inhabitants and, by extension, for those born on U.S. soil. Especially since they would be a planned stop on his retribution tour for suing him and his dad for discrimination when they were had their apartment renting venture.
I expect that under Miller’s direction it wouldn’t be a shocking development for this admin to conjure up a creative way to boot at least part of this population. When has established law ever stopped them? The Constitution itself is no longer sacred. It’s more like a scraggly piece of tp stuck to the heels of the bottoms of their shoes, if anything.