Citizenship by birthright? Now just what exactly does that mean and how does it work? Welcome back to the Apfel and Associates blog, where we provide concise information on legal process, documents, and changes as they develop. This time around, we are looking at birthright citizenship, specifically how it pertains to US citizenship laws.

Birthright citizenship is seeing a lot of play on the news right now, thanks in part to the remarks of President Trump. While the discussion around it has been decidedly worried, the reality of birthright citizenship in the US is built from two incredible pieces of legislation. We’ll get into those later. First, the essence of birthright citizenship.

What is Birthright Citizenship?

Birthright citizenship is one of the means by which citizenship is obtained, like naturalization. For birthright citizenship, it is automatically granted to any person born within and subject to the jurisdiction of the United States. This includes territories such as Puerto Rico, the U.S. Virgin Islands, and the Marianas. It further applies to any child born elsewhere if their parents themselves are U.S. citizens.

This right to citizenship is derived from the very first section of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868:

“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.”

So, for the past, 150 years, any person born under those conditions has automatically been granted that legal status. While newer legislation has been written that expands, clarifies, or otherwise has to do with birthright citizenship, such as whether this clause pertains to the children of foreign diplomats, that is the jist of the matter.

Why an Executive Order Can’t Affect Birthright Citizenship

The recent ruckus was caused by the suggestion that President Trump might attempt to end birthright citizenship via an executive order. An executive order is an action or direction the President can proclaim to assist with the management of the federal government. It has been used to end segregation in the armed forces, declaring bank holidays etc. The famous Emancipation Proclamation is another instance of their power.

However, that power can be checked by judiciary review, if they find that the order has no basis or support from the constitution. As you can imagine, an executive order to amend the constitution is not likely to see a precedent in the constitution itself. There is already a process by which changes can be made to the constitution and that is through amendments, not by executive order.

While the discussion does continue, most legal experts agree, there is no such power in the Oval Office to cause such a massive change to birthright citizenship, let alone the Fourteenth Amendment.

While birthright citizenship doesn’t require any sort of legal counsel, the other paths to citizenship can. If you are looking for an experienced, proven practice to help navigate those complex legislation and documents, contact us here at Apfel and Associates, we are proud to serve our communities in this manner.

So proud in fact, our own Matthew Apfel has taken a place as president of the International Law Section with the Arizona State Bar! As such, he represents the ILS Executive Committee of the Arizona State Bar.

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