Gaetz’s attempt to ban birthright citizenship is doomed, yet dangerous

Rep. Matt Gaetz has introduced a bill that would end what he calls “unqualified birthright citizenship.”

The Florida Republican’s bill calls for “denying automatic citizenship at birth to children born in the United States to parents who are not United States nationals, aliens lawfully admitted to the United States as refugees, aliens lawfully admitted for permanent residence, or aliens performing active service in the United States Armed Forces.”

The proposal stands virtually no chance of being signed into law.

First of all, birthright citizenship for children born on U.S. soil is authorized by the 14th Amendment to the Constitution. Gaetz is proposing a legislative change to birthright citizenship, which would obviously be easier than amending the Constitution. But this kind of circumvention would face legal hurdles higher than the front row of a Willie Nelson concert. 

And even if Gaetz’s proposal were legally feasible, it would face grim prospects for passage in the House, and I’d bet my salary it would be killed in the Democrat-led Senate. 

In a news release Tuesday, Gaetz claimed:

Birthright citizenship has been grossly and blatantly misapplied for decades, recently becoming a loophole for illegal aliens to fraudulently abuse our immigration system. My legislation recognizes that American citizenship is a privilege — not an automatic right to be co-opted by illegal aliens.

Aside from being false (again, because of that whole 14th Amendment thing), Gaetz’s rhetoric borrows from an ugly, racist tradition. Historically, attempts to deny birthright citizenship have been used by powerful white officials to deny the rights of ethnic and racial minorities in the U.S., including enslaved Black people, along with Indigenous people and the children of Asian migrants. Such efforts have served as a means of imposing second-class status on these groups, if not forcing them out of the country completely. 

Writer Erin Blakemore explained this in a piece for History.com, in which she cited a major Supreme Court case affirming that the 14th Amendment authorizes birthright citizenship for children born on U.S. soil, no matter the status of their parents. The 1898 case involved a Chinese American named Wong Kim Ark, who was born in the U.S. to immigrant parents in 1873 but was later denied re-entry to the country because of the racist Chinese Exclusion Act.

Although Wong was born before that law was enacted in 1882, and although the 14th Amendment had been used to protect birthright citizenship for years prior, Blakemore wrote that he “was a test case, selected by the Department of Justice in an attempt to prove that people of Chinese descent weren’t citizens.”

And, as Blakemore explained, the DOJ failed:

His case went all the way to the Supreme Court. Then something unexpected happened: Wong won. ‘The [Fourteenth] amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,’ wrote associate justice Horace Gray in the majority opinion. Not only was Wong Kim Ark’s claim to citizenship legitimate, Gray wrote, but ‘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.’

In a recent article for Smithsonian Magazine, legal and civil rights scholar Hardeep Dhillon explained how the case provides a window into what ending birthright citizenship for immigrant children would look like now. She wrote: 

If birthright children of Chinese ancestry (and their children in turn) were no longer considered citizens, they would lose their legal standing to reenter the U.S. after traveling abroad unless they belonged to one of the other exempted classes.

Present-day Republicans like Gaetz are attempting to revive an old issue that has already been adjudicated. And it’s an issue that has been prioritized by some of America’s most vehement racists, both past and present. 

In 2018, NBC News’ Jonathan Allen wrote about white nationalists’ excitement over then-President Donald Trump’s vow to issue an executive order outlawing birthright citizenship. Of course, these are many of the same people who are hysterical about the United States becoming more racially and ethnically diverse. 

Trump never did sign that order, though he has vowed to do it — you guessed it — on his first day back in the White House if he’s re-elected in 2024. But the bigots cheering him on are most likely very happy that Gaetz is carrying their cause forward in Congress.