Less than a week before Election Day, President Donald Trump has thrust the 14th Amendment — and its promise of citizenship to anyone born in the United States — into a mid-term election issue. But congressional members, including some North Carolina Republicans, have signed onto legislation to limit birthright citizenship long before Trump’s tweets.
Five North Carolina Republicans were co-sponsors on bills in 2015 and 2017 to more narrowly define who the 14th Amendment would apply to. Rep. Steve King, R-Iowa, introduced the legislation.
Under the Birthright Citizenship Act — which have not gotten hearings in the House, but have been introduced in each Congress since 2007 — citizenship would be limited to those born in the United States with at least one parent who is a citizen; a national of American Samoa and Swains Islands; a legal permanent resident or a non-citizen that is actively serving in the military.
Most legal scholars believe it would take a constitutional amendment to make the change.
The language of the bill would eliminate the children of legal immigrants without a green card, including H1B visa workers, or those in the country illegally. There are tens of thousands of H1B workers in North Carolina, many of them from India and working in the technology sector.
“Some of them are having kids when they come here legally. Are they going to have to leave or are the kids going to have to leave?” said Steve Rao, a city councilman in Morrisville and member of the New American Economy, a group that favors immigration as a way of boosting the economy. “We don’t want someone to move back to India and create the next Google or SAS. I do believe that this would be negatively perceived.”
Rao was born in West Virginia to Indian immigrants, making him a U.S. citizen under the 14th Amendment’s protections.
North Carolina Reps. David Rouzer of Wilmington, Richard Hudson of Concord, Virginia Foxx of Banner Elk, Walter Jones of Greensville and Robert Pittenger of Charlotte were among the bill’s 48 co-sponsors in 2017.
Trump told Axios that he could change it by executive order and would not need a constitutional amendment. In later tweets, Trump wrote that “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other.” It is unclear exactly what changes Trump would make. In 2015, then-candidate Trump and other GOP presidential hopefuls also discussed ending birthright citizenship.
The 14th Amendment was ratified in 1868, just after the end of the Civil War.
“Birthright citizenship has been exploited to reward those here illegally and encourages illegal immigration,” Foxx said in a statement to McClatchy. “Our national security and rule of law demand that we do not reward those who have come here and stayed here illegally.”
Foxx said the best way to solve the problem is through comprehensive immigration reform and a secure border, not — as Trump has suggested — through an executive order.
Rouzer said “final resolution of this issue will only rest with a change to the Constitution.”
“Constitutional experts have differing views on whether birthright citizenship established in the Constitution by amendment applies to those born to illegal immigrants. It’s my belief that such an interpretation is counter to the true intent of the 14th amendment,” he said in a statement to McClatchy.
Hudson said in a statement that eliminating birthright citizenship should be included in comprehensive immigration reform, which has proven elusive on Capitol Hill for several administrations.
“We need better border security and comprehensive immigration reform, and that includes the elimination of automatic birthright citizenship for children born to illegal immigrants,” he said.
The 14th Amendment says “all 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.” Trump and other critics have seized on the “subject to the jurisdiction thereof” part. Some legal scholars believe that phrase applies narrowly to foreign diplomats, who are not subject to U.S. laws, and their children.
Leon Fresco, a former Department of Justice official in the Obama administration, said that terminating that clause would mean any undocumented immigrant could not be subject to U.S. laws.
“It’d literally be like the movie ‘The Purge.’ It’s such an absurd proposal on its face,” said Fresno, who was deputy attorney general for the Office of Immigration Litigation. “If you’re not subject to the jurisdiction of the United States, then the U.S. can’t apply its laws to you.”
Fresco, like others, said the only way to make a change is to amend the Constitution.
North Carolina Sen. Jay Chaudhuri, who represents Wake County, said the president’s rhetoric is a continuation of his attacks on immigrants. Chaudhuri was born in Tennessee to Indian immigrants who were legally in the United States. His parents subsequently obtained green cards and are naturalized U.S. citizens.
“The president’s (threat of an) executive order is designed to continue to create anxieties and create fear,” he said. “If that has applications toward children of H1B workers then it just seems to extend kind of the larger rhetoric that we’ve seen by the president.”
The Trump administration said it plans to end a program that allows the spouses of H1B workers to work legally in the United States, though it has yet to enact the change.
An earlier version of this story misstated the profession of Chaudhuri’s parents.