By Wendy Cervantes

This week, the Supreme Court of the United States (SCOTUS) will hear oral arguments on Trump’s birthright citizenship executive order (EO). Issued on the first day of the Trump Administration, the EO is an attempt to deny birthright citizenship to babies born without at least one parent who is a U.S. citizen or legal permanent resident. 

Birthright citizenship has long been a constitutional right of every child born in this country. The Citizenship Clause of the Fourteenth Amendment overturned SCOTUS’s 1857 ruling in Dred Scott v. Sandford, which had denied U.S.-born children of African Americans the right to citizenship. The Court’s 1898 decision in United States v. Wong Kim Ark also confirmed that the right to U.S. citizenship also applies to children of immigrants born in the U.S. The enshrinement of birthright citizenship in our Constitution has helped to ensure that for over a century our youngest children are protected from the prejudices of the day, including the current xenophobic, anti-immigrant agenda of certain policymakers. 

Before reaching SCOTUS, Trump’s EO has been rejected by every federal court that has addressed it and is blocked from going into effect nationwide. The first ruling came from Judge Coughenour, who was nominated to the bench by President Reagan in 1981. In describing the EO, he said,

“I have been on the bench for over four decades. I can’t remember another case where the question presented is as clear as it is here. This is a blatantly unconstitutional order.”

In the weeks that followed, other federal courts also blocked President Trump’s EO.

What’s at stake for children and families?

The principles behind birthright citizenship are rooted in the belief that every child deserves the rights and protections necessary to grow and thrive from birth. Denying citizenship to newborns of undocumented or other noncitizen parents would have profound negative consequences for generations. In an amicus brief on behalf of 96 social science scholars, the experts argue that ending birthright citizenship through Trump’s EO would “cause serious harm, not only to U.S. immigrants and their children, but also to the entire United States.” The scholars estimate that if this executive order is implemented, it would strip approximately 4.7 million U.S.-born children of citizenship over the next two decades. 

The consequences children and families would suffer if birthright citizenship were repealed include:

• Denying citizenship to babies increases burdens on all families welcoming a new child. For the first time, all parents in the U.S. would be required to produce documentation to prove their U.S. citizenship or legal permanent resident status in order to establish their newborn’s citizenship. This will lead to more red tape for hospitals and families at a substantial cost to taxpayers. Currently, a U.S. birth certificate is sufficient proof of one’s citizenship. Since the U.S. does not have a national registry of citizens, all American families would be required to navigate complex laws in order to establish their child’s citizenship. This would likely be a cumbersome process for the millions of Americans who cannot easily produce the required documentation. Families with low incomes would likely face the greatest challenges in proving a child’s citizenship, and families of color, families with disabled family members, and families with limited English proficiency would also be disproportionately affected.
• Denying citizenship to babies would lead to poor developmental outcomes due to a lack of access to critical benefits and other supports. Conferring citizenship at birth provides every child born in the U.S. a strong start in life, allowing them to access the essential services every child needs to thrive. Undocumented immigrants are ineligible for the vast majority of federal programs, and even lawfully present immigrants face significant restrictions. There is extensive evidence of how participation in essential services, such as nutrition, health, and housing supports, positively influence outcomes in both the short- and long-term. Any delay could compromise the safety and health of babies in their most vulnerable stage of life.
• Denying citizenship to babies would render them stateless and increase their risk of being subject to detention and deportation. Due to its broad reach, this EO could result in millions of children without status or country. These children would become an underclass with few rights and protections, and they would live with the constant risk of deportation. Affected children would not be able to obtain a passport to travel freely or work lawfully, which would limit their lifetime earnings and access to good jobs. Research has also well documented that aggressive immigration enforcement policies can heighten anxiety among undocumented parents and their children. Children living in households with high levels of parental stress often have poor cognitive development, which can be seen as early as age two. Children who themselves are potential targets of immigration enforcement—such as undocumented children—must also endure the constant fear of being separated from family and deported. Research has shown that persistent stress on children can have long-term detrimental effects on brain development, particularly among young children.

Birthright citizenship is fundamental to ensuring that our youngest citizens are afforded the rights and benefits they deserve from the moment they are born. The research is clear that consistent, reliable access to essential services coupled with the freedom to live without fear of immigration enforcement or family separation is essential to children’s well-being. Denying birthright citizenship to babies would significantly harm newborns, families, and communities.