By Mayank Chhaya-
President Donald Trump’s executive order seeking to end birthright citizenship is causing a great deal of anxiety and stress among some 200,000 Indians who either qualify or have been approved for green cards.
What is particularly worrisome for them is the way a particular passage in the order is being interpreted to mean that children born to Indian professionals on H1B and H4 visas could be considered liable for deportation since they will be denied citizenship under the Trump order.
The order says, “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 when that person’s mother’s presence in the United States 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 person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
The first part explaining who is not eligible for birthright citizenship is clear enough, albeit is equally contentious, because it says, “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.”
Most tech professionals who work in the U.S. on H1B visas are approved for six years at three years per term. As a natural course of life many spouses become pregnant during that period and give birth to babies in the country. Under the current birthright citizenship, babies born thus automatically qualify to be U.S. citizens. That is what Trump’s executive order seeks to end.
The American Civil Liberties Union (ACLU) was the first out of the gate to sue the new Trump administration over his order. It charged the Trump administration with violating the 14th Amendment and federal law.
“At the ACLU, we know that denying citizenship to U.S.-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values. Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is. This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans,” the ACLU said in a statement.
“Only constitutional amendments, not executive orders or legislation, can change the Constitution. That’s why scholars have overwhelmingly condemned earlier, failed attempts by some state and federal lawmakers to pass legislation that denies citizenship to the U.S. born-children of undocumented noncitizens as unconstitutional. Because even Congress could not alter the constitutional right of birthright citizenship, a president certainly cannot do so by unilateral executive action,” the ACLU said.
But the Trump order maintains, “The 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
Being a constitutional issue flowing from the 14th amendment of the U.S. Constitution, merely because Trump signs an executive order with a flourish does not end birthright citizenship in place for 157 years now. It requires a supermajority in Congress to amend the Constitution followed by ratification by three-quarters of the states. Considering that as of January 21, attorneys general from 22 states and two cities have already sued the president to block his executive order, it is in for a tough legal and political battle.
The strategy by Trump and his advisers seems to be to let it play out in various courts and rise it all the way to the Supreme Court where the president might assume that a 6-3 Conservative majority justices, three of whom he appointed during his first term, could rule in his favor.
For now, the executive order, although serious in its intention, is an example of political grandstanding by Trump for the benefit of his new political majority. It is by no means a fait accompli that that birthright citizenship will end. Notwithstanding that, the order by itself is a source of great anxiety and uncertainty for Indian tech workers on H1B visas. Their only option at this stage is to wait for the political and legal theater to play out all the way to its logical denouement.
