Birthright citizenship in the United States

Current U.S. law

Citizenship in the United States is a matter of federal law, governed by the United States Constitution.

Since the adoption of the Fourteenth Amendment to the United States Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states: "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."

Statute, by birth within U.S.

United States Federal law (8 U.S.C. § 1401) defines who is a United States citizen from birth. The following are among those listed there as persons who shall be nationals and citizens of the United States at birth:

U.S. territories

The 14th Amendment applies to incorporated territories, so people born in incorporated territories of the U.S. (currently, only the Palmyra Atoll) are automatically U.S. citizens at birth.

There are special provisions governing children born in some current and former U.S. territories or possessions, including Puerto Rico, the Panama Canal Zone, the Virgin Islands, Guam, and the Northern Mariana Islands. For example, 8 U.S.C. § 1402 states that "[a]ll persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth".

Outlying possessions

According to 8 U.S.C. § 1408 persons born (or found, and of unknown parentage, under the age of 5) in an outlying possession of the U.S. (which is defined by 8 U.S.C. § 1101 as American Samoa and Swains Island) are U.S. nationals but not citizens, unless otherwise provided in section 1401. The U.S. State Department publication titled Acquisition of U.S. Nationality in U.S. Territories and Possessions explains the complexities of this topic.

U.S. waters and airspace

A child born in U.S. waters or airspace is a U.S. citizen by birth. See 7 FAM 1115 (What Is Birth In U.S. Airspace?) and 7 FAM 1116 (Documenting Birth in U.S. Waters and U.S. Airspace). For example, the baby of a Taiwan citizen who in 2015 sought to enter the U.S. as a birth tourist but instead went into labor then gave birth in U.S. airspace en route to Los Angeles was recognized as a U.S. citizen by birth.

Statute, by parentage

Under certain circumstances, children may acquire U.S. citizenship from their parents. The Naturalization Act of 1790 provided for birthright citizenship for children born out of U.S. jurisdiction to two citizen parents. In 1855, this was extended to children with citizen fathers and noncitizen mothers, and, in 1934, to children with citizen mothers and noncitizen fathers. From 1940 until 1978, a child born abroad who acquired U.S. citizenship at birth but had only one U.S. citizen parent had to fulfill a "retention requirement" of residing, or being physically present, in the United States or its outlying possessions for a certain number of years before reaching a specified age. Otherwise the child would not retain the U.S. citizenship (hence the name "retention requirement"). The retention requirement was changed several times, eliminated in 1978, and subsequently eliminated with retroactive effect in 1994.

Children born overseas to married parents

The following conditions affect children born outside the U.S. and its outlying possessions to married parents (special conditions affect children born out of wedlock: see below):

Children born overseas out of wedlock

There is an asymmetry in the way citizenship status of children born overseas to unmarried parents, only one of whom is a U.S. citizen, is handled.

Title 8 U.S.C. § 1409 paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.

8 U.S.C. § 1409 paragraph (a) provides that children born to American fathers unmarried to the children's non-American mothers are considered U.S. citizens only if the father meets the "physical presence" conditions described above, and the father takes several actions:

Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s. The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a citizen.

This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child. In 2001, the Supreme Court, by 5–4 majority in Nguyen v. INS, first established the constitutionality of this gender distinction.

Eligibility for office of President

According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace). As a result, controversies have arisen over the eligibility of a number of candidates for the office.

Legal history

Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship, although slaves and the children of slave mothers, under the principle of partus sequitur ventrem, were excluded. The United States did not grant citizenship after the American Civil War to all former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee. Those living in tribes on reservations were generally not considered citizens until passage of the Indian Citizenship Act of 1924, although by that time nearly two-thirds of American Indians were already citizens.

English common law

Birthright citizenship, as with much United States law, has its roots in English common law. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that, under English common law, “a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection." This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866). However, Calvin's Case is distinguishable, as a Scotsman was granted title to English land as his King (James VI of Scotland) and England's King (James I of England) were one and the same. Calvin was not born in England. Moreover, in Calvin's Case, Lord Coke cited examples in which the native-born children of parents, either invading the country or who were enemies of the country, were not natural-born subjects because the birth lacked allegiance and obedience to the sovereign.

Federal law

The Naturalization Act of 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.

Dred Scott v. Sandford

Justice Roger B. Taney in the majority opinion in Dred Scott v. Sandford 60 U.S. (How. 19) 393 (1857) held that African Americans, whether slave or free, had never been and could never become citizens of the United States, as they were excluded by the Constitution. The political scientist Stuart Streichler writes that Taney's decision was based on "a skewed reading of history.". Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation, free blacks had already been considered citizens in five states and carried that citizenship forward when the Constitution was ratified.

Justice Curtis wrote:

The first section of the second article of the Constitution uses the language "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States ... The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States...

1862 opinion of the Attorney General of the United States

In 1862, Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ...[italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,

... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

Civil Rights Act of 1866

The Civil Rights Act of 1866 declared: "...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." ("Indians not taxed" referred to tribal members living on reservations.)

Fourteenth Amendment to the United States Constitution

Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states: "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."

Expatriation Act of 1868

This act, a companion piece to the Fourteenth Amendment, was approved on July 27, 1868.

The Expatriation Act of 1868 led President Ulysses S. Grant to write in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".

Edward J. Erler of California State University, San Bernardino, and Brook Thomas of the University of California at Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act.

1873 opinion of the Attorney General

In 1873, The Attorney General of the United States published the following legal opinion concerning the Fourteenth Amendment:

The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

Indian Citizenship Act of 1924

The Indian Citizenship Act of 1924 provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision (slightly reworded) is contained in present-day law as section 301(b) of the Immigration and Nationality Act of 1965 (8 USC 1401(b)).

Sailor's Snug Harbor

In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.

Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

The Slaughter-House Cases

In the Slaughter-House Cases, 83 U.S. 36 (1873) — a civil rights case not dealing specifically with birthright citizenship — a majority of the Supreme Court mentioned in passing that "the phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States".

Elk v. Wilkins

In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court denied the birthright citizenship claim of an American Indian. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court's majority held that the children of Native Americans were

no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.

Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924, which rendered the Elk decision obsolete.

United States v. Wong Kim Ark

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person who

becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution.

Canadians transferred to U.S. hospitals

Since the majority of Canadians live in the relatively thin strip of land close to the long border with the United States, Canadians in need of urgent medical care are occasionally transferred to nearby American medical centers. In some circumstances, Canadian mothers facing high-risk births have given birth in American hospitals. Such children are American citizens by birthright.

In these circumstances, Canadian laws are similar to those of the United States. Babies born in Canada of American parents are also Canadian citizens by birthright.

In both of these situations, the birthright citizenship is passed on to their children, born decades later. In some cases, births in American hospital (sometimes called "border babies") have resulted in persons who lived for much of their lives in Canada, but not knowing that they had never had official Canadian citizenship. This group of people is sometimes called Lost Canadians.

Another problem arises where a Canadian child, born to Canadian parents in a US border hospital, is treated as a dual citizen and added to the United States tax base on this basis despite having never lived, worked nor studied in that nation. While Canadian income tax is only payable by those who reside or earn income in Canada, the US Internal Revenue Service taxes its citizens worldwide. Campobello Island is particularly problematic as, while legally part of New Brunswick, the only year-round fixed link off the island leads not to Canada but to Lubec, Maine — leading to many Canadians whose families have lived on Campobello for generations not being able to claim to be born in Canada.

Original meaning

During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.

Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.

Edward Erler argues that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: "Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally." Angelo Ancheta, by contrast, criticizes the "consent-based theory of citizenship", saying that "The Fourteenth Amendment was designed to ensure citizenship for 'all persons' born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves."

Modern dispute

Birthplace Citizenship is controversial as applied to children born in the United States to non-immigrant parents. In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves. Some media correspondents and public leaders, including former congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.

The Pew Hispanic Center determined that according to an analysis of Census Bureau data about 8 percent of children born in the United States in 2008 — about 340,000 — were offspring of illegal immigrants. In total, about four million American-born children of illegal immigrant parents resided in this country in 2009, along with about 1.1 million foreign-born children of illegal immigrant parents. The Center for Immigration Studies—a think tank which favors stricter controls on immigration—claims that between 300,000 and 400,000 children are born each year to illegal immigrants in the U.S.

Bills have been introduced from time to time in Congress which have sought to declare American-born children of foreign nationals not to be "subject to the jurisdiction of the United States", and thus not entitled to citizenship via the 14th Amendment, unless at least one parent was an American citizen or a lawful permanent resident.

Both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizenship Clause. In 1993, Sen. Harry Reid (D-Nev.) introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since. For example, U.S. Representative Nathan Deal, a Republican from the State of Georgia, introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868) in the 111th Congress. However, neither these nor any similar bill has ever been passed by Congress.

Some legislators, unsure whether such Acts of Congress would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.

The most recent judge to weigh in on the issue as to whether a constitutional amendment would be necessary to change the policy is Judge Richard Posner who remarked in a 2003 case that "Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense." He explained, "A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it." Posner also wrote, that automatic birthright citizenship is a policy that "Congress should rethink" and that the United States "should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children."

Professor Edward J. Erler of the California State University has argued that "Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923." Some others have disagreed with this interpretation, contending that while Congress can define territories (such as an Indian Reservation) as US jurisdiction, it has no power to define people as under US jurisdiction aside from where they were born.

Republicans in the state of Arizona have indicated an intention to introduce state legislation which would seek to deny American citizenship to Arizona-born children of illegal immigrant parents by prohibiting the issuance of a birth certificate unless at least one parent has legal status. However, critics argue that the child or parents could immediately sue the state for discrimination and that the federal courts would immediately force the state to issue the birth certificate.

A report by an organization called the National Foundation for American Policy (NFAP) in 2012 asserted that revoking birthright citizenship would be bureaucratic, expensive, would result in a national ID card, and would not slow illegal immigration. Under current law, if a citizen parent gives birth in a foreign country, they must prove their own citizenship in order for their baby to have citizenship. The NFAP estimated this to cost $600 per baby, not including legal fees. The report alleged that if birthright citizenship were eliminated, every baby in the United States would be subject to this cost. For the four million babies born each year in the U.S., this would total $2.4 billion per year. In addition, currently the US government does not keep any record of births, instead using the records of individual states to issue passports. The report alleged that the end of birthright citizenship would leave the states unable to verify whether a new baby should be granted citizenship, requiring the federal government instead to issue birth certificates, and likely a national ID card. Finally, the report claimed that eliminating birthright citizenship would not reduce illegal immigration. The report said that immigrants come to the United States for economic reasons, and illegal immigrants cannot use a citizen child to be granted citizenship. The report also said that all proposals to end birthright citizenship, aside from a constitutional amendment, would be unconstitutional and quickly be overturned in court. The Center for Immigration Studies disputed these conclusions, asserting in its own 2012 report that the NFAP's claims were "unsupported", that a bureaucratic overhaul would not be necessary, and that ending automatic birthright citizenship would not cost parents money, result in a caste system, or create stateless children.

Historian Eric Foner has explored the question of birthright citizenship in its relationship to American exceptionalism, and argues that "birthright citizenship stands as an example of the much-abused idea of American exceptionalism....birthright citizenship does make the United States (along with Canada) unique in the developed world. No European nation recognizes the principle."