New Delhi: Newly sworn-in US President Donald Trump had a busy first day in office, signing dozens of executive orders and repealing the actions taken by former president Joe Biden. One of the orders fulfilled a controversial campaign promise: to end birthright citizenship in the country.
The executive order essentially denies citizenship to those born to parents on temporary visas, such as work, tourist, or student visas. The change is set to take effect from 20 February. However, one will have to wait and see whether this will pass the legal framework with a lawsuit already having been filed against it.
If the order is enforced, it’ll impact the thousands of immigrants who arrive in America, including Indians, who made up the second largest group of immigrants moving to the US in 2022.
It creates massive uncertainty for immigrant families and puts the growing Indian-origin population in the US on the backfoot, especially as many use the temporary work visa route to gain citizenship in the US.
“Indian Americans will get affected simply because a lot of Indians go there on temporary work visas, and their children would no longer have the automatic right to citizenship,” Harsh Pant, vice president (studies and foreign policy) at the Observer Research Foundation (ORF) told ThePrint. “There’s going to be a realignment in terms of expectations from the community and what the US government is willing to do for them.”
The order says US citizenship will no longer automatically extend to persons born in the US if the mother is “unlawfully present” and the father is “not a United States citizen or lawful permanent resident” at the time of birth or and when the person’s “mother’s presence is “lawful but temporary” and the father is not a US “citizen of lawful permanent resident” at the time of birth.
“Talk about earning it!” David Bier, Director of Immigration Studies at the Cato Institute said in a post on X (formerly Twitter). “This [executive order] is the death sentence of Indian skilled immigration.”
He also referred to it as a “Kamala Harris clause” because, had the former vice-president had been born after this order was passed, as the child of someone on temporary status in the US, her citizenship would technically have been illegitimate.
Enforcing such an executive order is an uphill battle since birthright citizenship is enshrined in the US Constitution.
Impact on Indians
Indian-Americans are one of the fastest growing community in the US, accounting for almost 1.5 percent of the population at around 5.4 million, according to government data. Of this, around 34 percent are US-born.
Additionally, Indian students make up over 25 percent of the over 1 million international students in the US—around 330,000 Indian students.
Under the executive order, children born to Indian parents on temporary visas (such as the H-1B visa or a student visa) or those waiting for their green cards for permanent residency would no longer automatically acquire citizenship.
The order could also worsen delays for green card holders, a process that’s often delayed by years. It’ll also impact family reunification as US-born children will no longer be able to petition for their parents’ immigration, which they could earlier do once they turned 21.
Birthright citizenship
The tension between birthright citizenship and naturalisation is at the core of the immigration debate in the US, something that’s seen as integral to the American identity of being a land of immigrants.
There are two ways to claim American citizenship by birthright: jus soli, which is by virtue of being on US soil, and jus sanguinis, by virtue of being born to a US citizen.
Indian immigrants have long used jus soli to become citizens. Many Indians living in the US on temporary work or student visas have settled down in the US and raised families there while waiting for green cards or naturalisation.
The 14th Amendment of the US Constitution, adopted in 1868 and ratified shortly after the Civil War, protects the constitutional right of those born on US soil to become American citizens.
It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”. It was upheld in the historic 1898 decision, United States v. Wong Kim Ark.
Trump’s challenge is over the phrase “subject to the jurisdiction thereof”. Republicans have long argued that this should exclude non-citizens.
The UK ended birthright citizenship in 1981 under the Conservative government of Margaret Thatcher. Still, the current Conservative leader of the opposition, Kemi Badenoch, is a British citizen who got her citizenship under the birthright law.
Long road ahead
Enforcing the new changes in the US, however, will require a constitutional amendment. This is a notoriously difficult process owing to the rigid nature of the US Constitution, which has only been amended 27 times since it was ratified in 1789 and not since 1992.
A proposed amendment must be passed by two-thirds of both houses of Congress, then ratified by the legislatures of three-fourths of the state legislatures.
But there are other ways to bring about such a change. Judge-made law, or judicial decisions interpreting constitutional provisions, is one way. The Supreme Court has the mandate to enact constitutional law, but it can also be quickly reversed. For that, Trump will have to convince the Supreme Court to re-interpret a statute that’s been interpreted the same way for over 150 years.
“I don’t think we’ve seen the end of this,” said Pant. “One of the major incentives to go to the US now reduces, and will have an impact on who goes to the US—and the question is whether we’ll continue to see that kind of desire to go to the US that we’ve seen in the past.”
source : theprint