Birthright Citizenship is the practice of granting automatic citizenship to children born in the United States.
Under current federal law, children born in the U.S., and subject to the jurisdiction, automatically receive U.S. citizenship. However, Congress has given the authority to define who is "subject to the jurisdiction" to the Executive Branch, and through a federal regulation, the government currently excludes children born to foreign diplomats from receiving automatic citizenship.
The practice of giving automatic citizenship to everyone except for children of diplomats has created a magnet for foreign nationals who want their children to have U.S. citizenship and spawned creation of a cottage industry devoted to helping pregnant "tourists" illicitly enter this country for the purpose of giving birth.
In 2010, "there were 4.5 million U.S.-born children whose parents were unauthorized [illegal]," according to the Pew Hispanic Center (Pew Hispanic Research Trends Project, "A Nation of Immigrants: A Portion of the 40 Million, Including 11 Million Unauthorized," Pew Hispanic Center, Jan. 29, 2013.) The Center for Immigration Studies (CIS) has estimated that nearly 200,000 children are born annually "to foreign women admitted as visitors, that is, tourists, students, guest workers, and other non-immigrant categories."
Eight percent of all U.S. births (approximately 350,000 a year) come from at least one illegal-alien parent, according to the Pew Hispanic Center.
There is also a national-security component to the issue, as illustrated by the case of one child in this category: Anwar al-Awlaki, the American-born cleric who became one of al-Qaeda's top operational planners of terrorism.
Rep. Steve King (R-Iowa) has introduced H.R.140, the Birthright Citizenship Act, which would end the practice by requiring that at least one of the child's parents be a U.S. citizen or legal permanent resident.
The Immigration and Nationality Act defines Birthright Citizenship in the United States, but there is also a clause in the 14th Amendment of the U.S. Constitution. While the Supreme Court has interpreted the latter Birthright Citizenship clause as it applies to legal immigrants, it has never done so with regard to illegal aliens.
The United States and Canada are the only developed nations that grant automatic citizenship so expansively to children born within their borders. Anyone born in the United States is considered an American citizen regardless of whether the parents are U.S. citizens, legal residents, temporary visitors, or illegal aliens in the U.S. (Here is a more detailed country-by-country list of the status of national laws regarding birthright citizenship.) Automatic citizenship is granted according to federal statute, not the 14th Amendment, so critics of the policy argue that this could be reformed by changing or repealing the statute outright.
Veteran legal scholar John Eastman believes that Members of Congress who passed the 14th Amendment never intended that it include Birthright Citizenship in its current form. Eastman points to the wording of the 1866 Civil Rights Act as providing the key to the meaning of the 14th Amendment and the intent of the Framers.
The act provides that "All persons born or naturalized 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." This formulation makes clear, Eastman writes, that any child born on U.S. soil to parents who were temporary visitors to this country and remained a citizen or subject of the parents' home country "was not entitled to claim the birthright citizenship provided by the 1866 Act."
But for now, the constitutional meaning of the amendment as it applies to illegal immigrants will remain uncertain until the Supreme Court interprets it.
The expansive interpretation of the 14th Amendment currently in effect has potentially troubling national-security implications. In a CIS backgrounder, a retired government employee with extensive national security experience, points to Anwar al-Awlaki -- a terrorist with links to jihadists including Umar Farouk Abdulmutullab, who attempted to bomb a jetliner with a bomb hidden in his underwear as the plane prepared to land near Detroit, and Nidal Malik Hasan, who massacred 13 people in 2009 at Fort Hood, Tex. -- as an example of how Birthright Citizenship has the potential to benefit enemies of the United States.
Awlaki was born on April 22,1971 in Las Cruces, N.M. to non-immigrant parents while his father was studying as a foreign student in the United States. He left the United States with his parents when they returned to Yemen but later re-entered the United States, using his American passport, where he became spiritual mentor to several of the 9/11 hijackers before returning to Yemen and becoming a senior al-Qaeda operative. Awlaki was killed in a U.S. drone strike on Sept. 30, 2011.
The Birthright Citizenship Act, H.R. 140, would amend the Immigration and Nationality Act - not the Constitution - to consider a person born in the United States "subject to the jurisdiction" of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national; (2) a lawful permanent resident alien whose residence is in the United States; or (3) an alien performing active service in the U.S. Armed Forces.