Ending birthright citizenship creates stateless babies

The Birthright Citizenship Case: A Threat to Federal District Courts and Stateless Babies

The birthright citizenship case pending before the U.S. Supreme Court seems to have nothing to do with citizenship and everything to do with injunctions. A win for Department of Justice attorneys would limit federal district courts’ power to issue nationwide injunctions. As a by-product, such an outcome may also transform our country into the United States of Stateless Babies.

The Case and the Constitution

The case arose in response to an executive order by President Donald Trump that precludes birthright citizenship for any baby born in the US if the parents are living here illegally or visiting on a temporary visa. However, the Constitution has a different take: It insists on birthright citizenship for all babies born on American soil, regardless of parentage. The Fourteenth Amendment’s Citizenship Clause provides that “[a]ll 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.”

The Trumpian Citizenship Scheme

The Trumpian citizenship scheme is not feasible. Denial of birthright citizenship to the infants of undocumented parents (and visitors on a temporary visa) would mean that absolutely no baby born in our country would enjoy automatic birthright citizenship, either. Each newborn’s status as an American citizen would be indeterminate at birth and for as long as it would take to establish the citizenship of the baby’s parents. That is, all babies born in the United States would automatically be stateless — until proven otherwise.

Health Ramifications and Bureaucratic Undertaking

During oral argument in the current case, Justice Brett Kavanaugh rightly asked: “What do hospitals do with a newborn? What do states do with a newborn?” What, indeed! Nobody knows how much time or how many government employees would be involved in ascertaining parental citizenship. Approximately 10,000 babies are born in this country each day; in 2023, well over 3 million babies were delivered domestically. The immense undertaking of investigating and perhaps adjudicating the citizenship of masses of parents — usually two to a baby — would inevitably require establishing a sizable bureaucracy at taxpayer expense.

The World Health Organization recommends that, immediately following childbirth, women need rest and sleep to recuperate. Scientific evidence shows that maternal psychological distress may impair lactation and breastfeeding. So, even if ICE agents were not hovering over postpartum couples, babies’ undetermined citizenship and ongoing investigations would be inconsistent with the relatively lulling conditions needed for new mothers and their infants.

Adverse Effects and Harm to Families

Moreover, automatic statelessness will trigger a cascade of additional adverse effects. For example, the government would be unable to assign Social Security numbers to stateless babies, thereby depriving them of access to medical care and other important benefits. These harms would be inflicted on all families with newborns, even though experts say just 7% of babies born in America have undocumented parents.

Conclusion

The mayhem of unraveling birthright citizenship would not be the kindly welcome that a civilized society should extend to its tiniest, most fragile denizens. There is something profoundly sad about the Trump administration’s willingness to devalue and diminish the well-being of these innocents for the sake of furthering its unthinking immigration agenda.

Susan H. Bitensky is a constitutional law professor at Michigan State University College of Law. She has published extensively on the topic of children’s rights under the Constitution.