A question has been raised about constricting the 14th Amendment to provide that only children born of a legal resident mother be given citizenship.
Regarding that question here is some historical perspective. I think that perspective is important because what constitutes “legal” and “illegal” has changed over the years, and most likely will change again in the future. The question then to deal with is, “how do you create a regulation that is flexible enough to allow for changes in the status of immigrants?”
One answer is that you allow for individuals who have current legal status at the time of the birth of their child; however, this means that some people born here may be denied citizenship, while others born 5 years prior to, or 5 years after that individual may be given citizenship.
Do we want to create an underclass of non-citizen children? How will we deal with them?
HISTORY
At the time when the 14th amendment was passed, the US had a largely open-border, state-regulated system. The only relevant legislation was the 1790 Naturalization Act, which restricted citizenship to “white persons”.
The 1882 Chinese Exclusion Act excluded a specific nationality.
In the 1920’s the US adopted a quota-based system to restrict Eastern and Southern Europeans, and to ban most Asian immigration.
In the 1960’s the US adopted a merit/family-focused system.
The 1965 Immigration and Nationality Act (Hart-Celler) abolished the quota system and shifted the source of immigration from Europe to Asia and Latin America.
Legality over the past 100 years has been selectively defined by race, nationality, and health standards. Rules have been enacted, modified, and reversed. Quotas were codified to limit those people allowed to enter this county, e.g., Irish, Italian, Jewish, Asian, etc.
THE LAST 10 YEARS
As an example of the difficulty in trying to codify legality, here is a short timeline of the changes over the past 10 years.
The Biden administration utilized humanitarian parole for specific nationalities (Cubans, Haitians, Nicaraguans, Venezuelans, etc.). They expanded the Temporary Protected Status (TPS) to over 1.4 million people.
The current Trump administration has terminated many of these programs and revoked TPS for multiple nationalities.
The question you must deal with is not whether you agree or disagree with either administration’s position; it is whether the shifting political winds should define citizenship.
If you want to restrict children born of legal immigrants, the pool changed dramatically last year. Which year should prevail? And what will happen in the next administration? Do we want a system that defines citizenship based on the political whims of the ruling party?
Under President Biden, there was an increase in technological tools for immigration allowing appointments to be scheduled at ports of entry.
That system was shuttered last year.
Provisional waivers for family-based immigrants existed prior to the current administration.
Travel bans were instituted in 2017 under Mr. Trump and reversed under Mr. Biden.
Green card issuance expanded and contracted under the two administrations.
ASYLUM
Asylum is a long-used tool for dealing with immigrants escaping oppression, natural disasters, personal danger, political intimidation, etc. From the founding of this country until after WWII, immigration policies did not distinguish between immigrants and refugees.
The Displaced Persons Act of 1948 was passed to help refugees fleeing communist regimes.
In 1967 the US adopted the 1967 UN Protocol Relating to the Status of Refugees, defining “refugee” and removing geographical and time constraints from previous legislation. This was followed by the Refugee Act of 1980 which standardized the procedure granting asylum to refugees.
In 1996 the Illegal Immigration Reform and Immigrant Responsibility Act restricted access to asylum with a one-year filing deadline.
BOTTOM LINE
You may want to attempt to restrict citizenship based on the legal status of the parents at the time of the child’s birth. But legal status is a moving target. How do you distinguish from one year to the next?