By Howard Hills
The Trump administration’s proposed changes to regulations for certification of birthright citizenship for children born overseas do not appear to impact in a general way the statutory birthright citizenship granted by Congress under the Immigration and Nationality Act (INA) for persons born in Puerto Rico.
However, if residency in Puerto Rico by parents or children born overseas is relied on as U.S. residency in a claim for statutory birthright citizenship, or naturalization of a child who does not acquire citizenship at birth, then the new regulations may apply in a small number of “special circumstance” cases as discussed below.
The statutory birthright citizenship for children born in four U.S. territories (PR, Guam, Northern Marianas, Virgin Islands), is granted by Congress under INA Sections 302 to 308. These federal immigration laws are enacted in the exercise of the naturalization and nationality law powers of Congress under Article I, Section 8, Clause 4 of the U.S. Constitution.
Nor do the proposed regulations appear to directly alter acquisition of birthright U.S. citizenship of persons born in a state under the 14th Amendment. Instead, the Trump regulations would apply to claims of birthright citizenship derived from parents whose children are born overseas.
Denial of historic rights or political hysteria?
If one believes the explicit as well as subliminal messaging in headlines and broad brush reporting in the New York Times and other national media, the Trump administration wants to end U.S. birthright citizenship for children not born in a state in conformity with federal immigration statutes.
Even as factual details about the proposed regulations narrow the story line, the narrative is one of confused fear and loathing that Trump wants to make stateless orphans of children born to U.S. military, diplomatic, civilian federal employee and private civilian parents residing in foreign nations.
However, the Trump administration insists revisions to nationality and naturalization regulations are aimed at ensuring uniform enforcement of parental and child U.S. residency requirements under the U.S. Immigration and Nationality Act (INA). Sufficient parental and/or foreign born child contact and residency in the U.S. historically and currently applies to statutory birthright citizenship and naturalization for children born overseas.
The White House defends the proposed new regulations as just a technical fix to conform Homeland Security, Defense, Justice, State Department, and other Executive Branch agency standards and practices to federal citizenship and naturalization laws.
But no one denies these surgically targeted reforms may be the start of a roll back of agency regulations that arguably give too much administrative discretion to the federal bureaucrats in the U.S. and overseas to confer as well as deny citizenship without sufficiently specific sources of legal authority under the INA.
Where citizenship is conferred by federal statute law, rule of law principles require that parents of children who qualify at birth, as well as naturalization of children who do not qualify at birth, must meet objective criteria and clearly defined U.S. residency standards. That is imperative so that federal officials in embassies and overseas offices of federal agencies do not arbitrarily approve or disapprove citizenship certification and naturalization applications.
Indeed, there are concerns in the Trump Administration and Congress that the State Department may be issuing the Certificate of Citizenship and even U.S. passports to numbers of applicants much larger than the small number that may be impacted by the proposed revisions that appear to apply in special circumstance cases.
For example, the proposed regulations clarify that birth on a military base or elsewhere in a foreign country while parents are serving in or employed by the U.S. military does not constitute residence in the U.S. by parents of child for purposes of birthright citizenship conferred by statute. So a parent or child who has not spent the time required by the INA residing in the U.S. may not qualify for statutory birthright citizenship or naturalization unless it can be attained on other grounds.
Larger birthright citizenship battle looms ahead?
Much of the alarm in the media over these regulations that apply to a narrow band of cases reflects anticipatory anxiety over fears Trump wants a showdown over issuance of passports to children of non-citizen parents present in a state or territory unlawfully and in violation the INA. The theory being debated by those who favor or oppose such shift in birthright citizenship policy is that Congress has the power to regulate birthright citizenship tourism and treat children of border violators as outside U.S. justification for purposes of the 14th Amendment citizenship clause.
That is a more complicated issue than even most immigration lawyers realize. For it involves the question of whether the Congress has the authority and thus the responsibility to regulate the conferral of birthright citizenship under the 14th Amendment.
Since 1868 when the 14th Amendment was adopted the Congress has not enacted statute law regulating birthright citizenship for children born in states. Instead, the birthright citizenship clause in the 14th Amendment has been interpreted as grounds for automatic, guaranteed and universal birthright citizenship for children born in a state.
This, instead of any form of regulation or limitation of birthright citizenship in the states, Congress simply reenacted the language of the citizenship clause in the 14th Amendment in the INA as it applies to states (INA Section 301, 8 USC 1401).
Meanwhile, the federal courts have recognized only very limited exceptions to constitutional birthright citizenship in the states, primarily for children of foreign diplomatic personnel over which U.S. jurisdiction is constrained by international reciprocity.
However, just as freedom of speech, press, religion and association are regulated, in principle so can the birthright citizenship clause be regulated. You can’t yell fire in a crowded theater, cause a stampede, and call it freedom of speech, and you can’t give LSD to your child and call it freedom of religion. Congress has limited those First Amendment rights in ways the U.S. Supreme Court has determined to be permissible.
Does the 14th Amendment mean the hands of Congress are tied? Can any mother able to deliver a baby within the borders of a state thereby create citizenship for that child under any and all circumstances beyond the reach of Congress for purposes of the 14th Amendment?
Or can exploitation of America’s liberal birthright citizenship tradition be regulated to exclude children whose parents have no nexus to the U.S. other than wanting a so-called “anchor baby” to open the gate for family members?
If so, will a change in birthright citizenship in the states apply to children who acquire U.S. birthright citizenship in a territory under a federal statute enacted under Article I, Section 8, Clause 4?
Those are issues that do not implicate the territories in the present, but depending on how those questions are answered the choices and paths to citizenship for the territories may change as well.
Howard Hills was lead counsel on territorial status in the Executive Office of the President, National Security Council and State Department from 1982 to 1989.