Rep. Morgan Griffith (R-VA) has introduced a bill that would limit birthright citizenship in Puerto Rico and the other U.S. territories. Griffith’s press release announces the introduction of The End Birthright Citizenship for Territories Act. Under this proposal, babies born in Puerto Rico on or after January 1, 2027 would only have birthright citizenship if they had at least one parent who was a U.S. citizen or permanent resident. The bill is described in more detail in the Congressional Record as H.R.9724 – “To clarify United States birthright citizenship laws in the territories and combat foreign nationals who are seeking citizenship in the United States territories.”
What would be the immediate effect of the bill? Babies whose non-citizen parents were legally in Puerto Rico or the other U.S. territories with a work visa or student visa or who were for any other reason present when the child was born would not be U.S. citizens. Their citizenship would be based on that of their parents and would follow the laws of their parent’s countries.
How is the End Birthright Citizenship for Territories Act different?
This bill is one of several bills pending before Congress that attempt to limit birthright U.S. citizenship. The Griffith proposal is legally possible because birthright citizenship in Puerto Rico is statutory, not constitutional.
The Supreme Court, in the case of Trump vs. Barbara, ruled that constitutional birthright citizenship can’t be limited by executive order. The Supreme Court decision confirms that birthright citizenship in enshrined in the U.S. Constitution, so any bill introduced in Congress that seeks to end birthright citizenship in the fifty states would run counter to the Constitution.
But the insular cases made it clear that the Constitution doesn’t apply fully in U.S. territories. The current law states that everyone born in Puerto Rico is a U.S. citizen at birth. The Griffith bill seeks to change U.S. law to reflect a situation similar to U.S. citizens who happen to be living in a foreign country when they have a baby. Their babies are automatically eligible for U.S. citizenship, but they do not have U.S. birthright citizenship.
Babies born to U.S. permanent residents who are temporarily visiting another country do not have U.S. citizenship automatically, although they can gain permanent residence status. The Griffith bill would similarly allow access to U.S. citizenship for a child of a permanent resident who is born in a U.S. territory.
Implications of the bill
The future of birthright citizenship in Puerto Rico is implicated in the new bill. As Griffith wrote, “[I]n the territories, citizenship rights must be granted by Congress and therefore are subject to Congressional scrutiny. Unlike in the States and Washington, D.C. where the Supreme Court has made clear that a Constitutional Amendment is needed to affect birthright citizenship laws, a simple change in statute can limit birthright citizenship in the territories.”
Clearly, Congress has not lost sight of the fact that Puerto Ricans’ citizenship is statutory and not protected under the Constitution. U.S. birthright citizenship in territories could be ended by Congress, as the title of the bill reminds us. The name of the bill – “The End Birthright Citizenship in the Territories Act”- makes a point: Congress has control over citizenship in Puerto Rico.
Not only is Griffith making the point that Congress can change citizenship laws in the territories, but he is also demonstrating that he is willing to make that change. ““The Barbara decision leaves open the door for Congressional action on citizenship in the American territories,” he wrote.
Separatists have frequently made the claim that an independent Puerto Rico could keep U.S. citizenship. The only support we’ve seen for that claim is a belief that Congress just wouldn’t choose to alter Puerto Rico’s statutory citizenship. The new bill demonstrates the uncertainty inherent in that hope.
Plaskett Pushback
Upon the introduction of the Griffith proposal, Congresswoman Stacey E. Plaskett (D-USVI) issued a statement in opposition to the bill. She said:
“While Congressman Griffith states H.R. 9724 would solely remove “birth tourism” in actuality, the bill would strip automatic U.S. citizenship from children born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands beginning in 2027. Its sweeping language could leave children born in the U.S. territories citizens of nowhere. The bill relies on the Insular Cases for its authority, a body of law built on openly racist reasoning which the [U.S. Department of Justice] previously renounced. This bill is divisive, it is racist in its foundation, and it is corrosive of the principles of American law.”
