Here’s why DeSantis’ birthright citizenship vow is nothing but hot air | Opinion

The tale of droves of pregnant Central American women crossing the southern border to give birth to “anchor babies” in the United States has long been used to incite xenophobic anger among conservative voters.

It’s the perfect bait for an expert baiter like Gov. Ron DeSantis. When announcing this week a plan to crack down on illegal immigration, he vowed, if elected president, to take action to end birthright citizenship, in which the United States automatically grants citizenship to anyone born within its borders.

Easier said than done.

Donald Trump made the same promise in 2016, but didn’t fulfill it. Birthright citizenship has been rooted for more than a century in the 14th Amendment of the U.S. Constitution. Presidents can’t just wave a magic wand and, voila, they get the Constitution they like. Regardless, DeSantis, a master at remaking the judicial system to his far-right liking, would likely try.

DeSantis and Trump know the power of exploiting unfounded fears of “anchor babies,” even if they don’t outright use the term. That dehumanizing stereotype gives outsized relevance to a minor problem with our broken immigration system. There are no official numbers to show how many pregnant women cross the U.S.-Mexico border to give birth here, but the Pew Research Center gives an idea. In 2016, the total number of babies born to undocumented parents fell, compared to the previous decade, to 250,000, about 6% of all the births. These numbers, however, don’t tell us how many of those parents had recently migrated to the United States.

Not automatic

There’s a myth that having a U.S.-born child makes the lives of undocumented immigrants easier. But that child does not automatically grant legal status to the parents. A child can only sponsor the parents for a green card (legal residence) after they turn 21. Taking away newborn babies’ legal status accomplishes nothing, but it throws more people into the shadows, creating a new contingent of undocumented immigrants who know no other country but the United States.

There are women who pay thousands of dollars to travel to this country for the sole purpose of giving birth — a practice known as “birth tourism” — but they usually are wealthy Chinese and Russian mothers who want their children to have dual citizenship, and they normally return to their home country. We’re sure it’s not those babies or mothers Trump or DeSantis are alluding to when they vow to end birthright citizenship.

In May, Trump renewed his promise that, if reelected, he “will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.”

DeSantis vowed to challenge what has been legal precedent for more than a century during a speech at the Texas border.

“Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration. It is also inconsistent with the original understanding of the 14th Amendment, and we will force the courts and Congress to finally address this failed policy,” DeSantis wrote on his website.

Any laws or executive orders ending birthright citizenship would, without a doubt, be challenged in court. DeSantis’ words hint that he’s relying on his — and Trump’s — strategy to remake state and federal courts by appointing conservative judges and Supreme Court justices who might side with them.

The 14th Amendment, ratified in 1868, states that, “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.”

There’s a general consensus the amendment grants citizenship to a child of unauthorized immigrants, as a 1995 opinion by the Justice Department’s Office of Legal Counsel concluded. That position was based partly on an 1898 landmark Supreme Court ruling that granted citizenship to the son of Chinese nationals legally residing in the United States. Justice Horace Gray wrote for the court:

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

Counter-argument

The only way to end birthright citizenship then would be through a cumbersome constitutional-amendment process. That requires support from two-thirds of the U.S. House and Senate and three-fourths of the states.

There are some conservative lawyers who argue the 14th Amendment, as it’s written, does not grant citizenship to all U.S.-born children. They believe the requirement that a person be “subject to the jurisdiction” of the United States when they are born means more than just being on American soil.

Even a conservative Supreme Court is not guaranteed to uphold that theory or rule in favor of Republicans. Take how some of the court’s conservative justices this week ruled against North Carolina Republicans who were fighting to keep gerrymandered congressional maps.

What all this legalese means is that DeSantis, like Trump before him, is promising things he might not be able to deliver. Talks about ending birthright citizenship and anchor babies are better campaign talking points than effective immigration policy.

This story was originally published June 28, 2023 at 4:09 PM.