Birthright citizenship

This is Joseph

There was a recent executive order seeking to limit some classes of birthright citizenship going forward. It seems likely that existing legislation and the fourteenth amendment of the constitution will override this executive order, as it seems quite clear that neither source can be overruled by an executive order. 

The conceit at the the heart of this move: 

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Obviously, these people are subject to the jurisdiction (i.e., laws) of the United States. The attempt to stretch definitions to get around traditional definitions of jurisdiction are strange. 

Now, I want to make one more argument for why the current law is actually a good idea. It prevents (in a large and complicated country) needing to go back any further than the birth of a person to determine if they are citizens. The documentation of birth via a certificate of live birth ends the discussion. Because, otherwise, this runs the risk of creating a chain of uncertainty. Because the legal status of a person's parents (information that you can well imagine people not having access to) is germane to the determination of citizenship. 

Now because this EO is only forward looking, this problem will creep up slowly. But, for example, how do you know if your great grand parents had at least one citizen? Quick question -- what was your great grandfather's name? How certain are you of their immigration status? As it stands, this questioning ends the second somebody in a family is born in the United States. 

This also cures a second problem. What about records? How certain are we that the records of other people are correct? Remember, based on this EO being born in the US (and having a US certificate of live birth) is not enough and now you need to know your parents status at the time of your birth (and their parents, at the time of their birth, and really once you hit the 1920's things are just very different). 

The DACA group was already a tough call (illegally brought into the country as minors) but this doesn't even begin to hint at the problem of stateless people you can get with this EO.

The good news is that it is likely going nowhere, legally speaking, as the law is pretty well settled here and the new problems are not worth the gains.