Shortly after President Trump’s executive order limiting birthright citizenship was ruled unconstitutional by the Supreme Court, Rep. Morgan Griffith (R-VA) introduced legislation called the “End Birthright Citizenship in the Territories Act.”
Findings
Griffith’s bill starts with a list of statements beginning with “Whereas.” Most bills do this, and the list is usually called “findings.” Griffith’s bill calls it “background.” There statements are the premises that the bill is based on.
Here is the list for the End Birthright Citizenship act:
- Whereas, under Article IV, Section 3, Clause 2, the Constitution states: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;”;
- Whereas, Supreme Court of the United States precedents, known collectively as the Insular Cases, stands for the proposition that Congress has the power to legislate with respect to the United States territories, including citizenship status;
- Whereas, Congress has previously granted citizenship by statute to four of the five United States territories but not to the people of American Samoa;
- Whereas, the decision in Trump v. Barbara did not address or call into question any of these Insular Case based statutes;
- Whereas, Congress has the inherent authority to change statutes relating to citizenship of persons born in the territories.
In plain language, these statements explain why Rep. Griffith believes he can make a law ending birthright citizenship in the territories, including Puerto Rico:
- Territories are governed under the U.S. Constitution’s Territorial Clause, which says that Congress can make all the rules for them.
- The Insular Cases are a series of Supreme Court rulings holding that the U.S. Constitution doesn’t apply fully to territories.
- Congress made laws granting citizenship to four of the inhabited territories.
- The Supreme Court decision on Trump’s executive order didn’t change the Insular Cases.
- So Congress can change the laws granting citizenship to the territories.
Congress gave U.S. citizenship to the territories by enacting a law. Congress can therefore enact a new law that changes the parameters of that citizenship.
How would the bill work?
Griffith’s bill would change laws on citizenship in territories as found in Title III of the Immigration and Nationality Act Section 302 (8 U.S.C. 1402), which states:
“All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.”
That is, people born in Puerto Rico after the law took effect in 1941 would have birthright citizenship. Also, any qualified person who did not gain citizenship from the 1917 Jones-Shafroth Act would catch up and become a citizen.
The “End Birthright Citizenship in the Territories” bill would change that paragraph in one important way. “All persons born in Puerto Rico on or after January 13, 1941” would become “All persons born in Puerto Rico on or after January 13, 1941 and before January 1, 2027.” The Nationality Act would no longer apply to anyone born later than December 31, 2026.
People born in Puerto Rico between 1941 and 2026 would still be citizens at birth, but after that, birthright citizenship would end. In fact, the law goes on to say, “The amendment made by subsection (a), (b), (c) and (d) shall not be construed to affect the citizenship or nationality status of any person born in the United States before January 1, 2027.” That is, the citizenship of current U.S. citizens born in Puerto Rico would not be changed.
The loopholes
Up to the last paragraph of the bill, it just ends birthright citizenship in the territories, as the title says. However, there is one more sentence. The proposed law claim that it “shall not be construed to affect the citizenship or nationality of a person born in the United States territories, who is born as a child of a United States citizen or the child of an alien lawfully admitted for permanent residence in the United States.”
U.S. citizens who give birth in a foreign country can register their babies as U.S. citizens. So U.S. citizens who have a baby in Puerto Rico can feel confident that their babies will be U.S. citizens, just as they could if they had a baby in a foreign country. However, legal permanent residents of the United States cannot pass permanent residence on to their children. For green card holders in Puerto Rico, automatic U.S. citizenship for their babies would be possible in Puerto Rico but not in foreign countries.
The babies of foreign nationals lawfully present in Puerto Rico would not have U.S. citizenship. Neither would the babies of people unlawfully present in Puerto Rico. As the bill says in its introduction, the goal is to “combat foreign nationals who are seeking citizenship in the United States territories.”
The problem
Although the stated claim of the bill is to remove birthright citizenship from the territories, the scope of the bill may actually be more sweeping. Neil Weare, Co-founder and Co-director of Right to Democracy, has pointed out inherent dangers in the bill “The proposed amendments to federal statute are sweeping, and could mean that anyone born in a U.S. territory starting in 2027 would no longer be recognized as a US citizen, indeed, may not be a citizen of anywhere,” Weare said. “While Rep Griffith says his legislative intent is to focus on addressing so-called ‘birth tourism’, the actual text of the legislative amendments does not contain any limiting language and could deny citizenship to anyone born in a territory moving forward.”
