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As an extension of this question, if Birthright Citizenship in the United States were to be revoked for the children of illegal residents, could it retroactively remove citizenship?

Or could it only prevent those born after such an action from being granted citizenship?

As an addition to this, could the decades of granting such citizenship be considered as precedent by any court taking up the case(s) that would immediately rise from such an action?

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    To be clear, the only mechanism that could revoke it is a constitutional amendment. The answer thus depends. Precisely what constitutional amendment are you hypothesizing to have occurred? Would it have repealed the ex post facto law prohibition in article 1 section 9 as well? – JdeBP Nov 1 '18 at 9:22
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    @JdeBP we could assume for the sake of argument that there is some class of people for whom the applicability of the 14th amendment depends on interpretation. Then the question becomes germane, because a change in interpretation or application is not necessarily an ex post facto law. – phoog Nov 1 '18 at 13:41
  • There's nothing in this question asking "for the internal motivations of people, how specific individuals would behave in hypothetical situations or predictions for future events." Also, answers do not need to be "based on speculation." The question asks only if it is possible for the contemplated change to apply to those already born, and a factual answer is possible. I have voted to reopen the question. – phoog Nov 1 '18 at 14:05
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    In the meanwhile, I will summarize the answer I was working on when the question was closed by saying that yes, it would be possible, and it could require all current US citizens to prove that they have at least one ancestor who either immigrated legally or was a US citizen in 1776 (or perhaps on the date when immigration controls were first enacted). – phoog Nov 1 '18 at 14:06
  • If you are asking about the situation where the courts interpret the law and constitution in such a way that there is no unrestricted birthright citizenship, see this question on Law.SE: Can a change in interpretation of the 14th amendment apply only to future births? – user102008 Dec 26 '18 at 4:55
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In the US birthright citizenship is granted in the constitution.

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.

President Trump claims that he could revoke this with an executive order. He is wrong. Any child born in the US, apart from those with diplomatic immunity, is subject to US law. That includes illegal immigrants unless you want to declare that they are immune from arrest and don't have to pay income tax. Not even an Act of Congress can override this: it would take a constitutional amendment.

Whether such an amendment would retroactively remove citizenship would depend on the precise text of the amendment.

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    This answer is incorrect. No court has ruled on whether or not this is constitutional. There are valid arguments on both sides. Until the supreme court rules, you cannot say this is settled – Frank Cedeno Nov 1 '18 at 12:30
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    @FrankCedeno there are arguments on both sides. All the valid arguments are on one side. – phoog Nov 1 '18 at 13:43
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    @shoover Often "it depends" is the right answer. Legal matters are routinely highly context specific and very sensitive to the exact language of the legal language in question. A question at StackExchange often doesn't have enough information and detail to provide a definitive or even meaningful answer. – ohwilleke Nov 2 '18 at 17:57
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    @FrankCedeno Incorrect. The justices wrote quite clearly, at length, that the question of being 'subject to the jurisdiction of' US Law was a question of being held accountable by US Law. The dissenting opinion of course, dissented, but the ruling as it was passed was explicitly predicated on that interpretation. There is no doubt to be had about that, at all, none, it is absolutely not in question. If someone wants to make a case it needs to be in direct contravention with that ruling. – Iron Gremlin Nov 3 '18 at 0:10
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    @FrankCedeno You are correct in that there was an argument about what that meant, and it is possible for the SCOTUS to overrule past decisions, but you are categorically incorrect in asserting that the majority decision made by the SCOTUS at the time meant anything else. – Iron Gremlin Nov 3 '18 at 0:15
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We don't know

First, if Donald Trump issues an executive order, it won't change the law one iota. Executive orders do not affect the law. They affect how the executive branch interprets or enforces the law.

What an executive order could do is lead to a court case where the United States Supreme Court rules that birthright citizenship does not apply to undocumented immigrants. The Supreme Court has never ruled on exactly that issue, although its ruling in Plyler v. Doe went the opposite direction. Whether such a ruling would affect people who had already been treated as citizens based purely on being born is unknown. The court might say that they were never citizens. Or it may come up with some other reason to consider them citizens. We don't know what the court will do in that case. It could rule either way.

You will see US v. Ark cited more often. However, Ark determined that people legally in the US were under US jurisdiction even if not citizens themselves. As a result, Wong Kim Ark was a citizen by right of being legally born in the US. It didn't say anything about people illegally in the US, as that wasn't the facts of the case before it. Doe involved undocumented immigrants, but it wasn't about citizenship, just education funding. It did rule that the fourteenth amendment applied to undocumented immigrants. But it was discussing the second mention which modified any person. Birthright citizenship is based on the first use of the word jurisdiction.

A ruling might distinguish itself from Ark and Doe. Or it might overturn one or the other or both.

TL;DR: since we don't know the exact logic the court might use, we don't know if it will be retroactive or not. Any other answer is purely speculative.

  • Wong Kim Ark's family name was Wong, not Ark. – phoog Nov 2 '18 at 16:15
  • Also, both mentions of "jurisdiction" apply to persons. One mention is "all persons...subject to the jurisdiction [of the United States]" and the other is "any person within the jurisdiction [of a state]." There are two possible distinguishing differences. One is the difference between "subject to" and "within." The other is that the words identify different jurisdictions. I doubt, however, that either difference would lead the court to determine that illegal immigrants are not within the scope of the first clause in the face of its earlier finding that they are within that of the second. – phoog Nov 2 '18 at 16:22
  • Worse. We don't know the Executive Order at all. It is curious that Trump says he can revoke birthright citizenship by executive order, but has so far declined to share drafts of such an order. – emory Nov 6 '18 at 3:00
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That's kind of a tricky question.

The Constitution specifically prohibits ex post facto law, that is, laws that retroactively alter the definition of a crime or punish conduct that was legal when committed.

No Bill of Attainder or ex post facto Law shall be passed.

US Constitution: Article I Section 9 ("Limits on Congress")

Ex post facto law, law that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed in a way substantially disadvantageous to the accused.

The Constitution of the United States forbids Congress and the states to pass any ex post facto law. In 1798 it was determined that this prohibition applies only to criminal laws and is not a general restriction on retroactive legislation. Implicit in the prohibition is the notion that individuals can be punished only in accordance with standards of conduct that they might have ascertained before acting.

Encyclopedia Brittanica: Ex Post Facto Law

Since there would be a significant new sanction for people previously granted the right of birthright citizenship, and would, potentially, make their presence here illegal, it is highly likely that any attempt to make it retroactive would fail, Constitutionally.

However, we are talking about an action, removing birthright citizenship which is specifically defined and granted in the Constitution, by executive fiat. If we're going to delve into the fantasy world where the Constitution and its rules do not apply, then I'm not sure why this provision would be binding when the core, fundamental one at issue is not.

  • To be fair, it would be easy to arrange that the criminal offense of illegal residence does not apply retroactively. The practical impact would be the same. – MSalters Nov 5 '18 at 12:54
  • @MSalters - If you are a citizen from birth, I'm not sure how an offense of illegal citizenship would apply. I think maybe you are addressing a specific point in the answer, and I'm probably missing which one it is. – PoloHoleSet Nov 5 '18 at 16:24
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Legally it would be impossible to retroactively revoke citizenship, due to the international convention on not making people stateless.

Someone who is a US citizen and holds no other citizenship would be made stateless and not have the right to live in any country. The US could not deport them because no other country would be obliged to accept them. Essentially it would make them refugees, and under international law the US would be responsible for them anyway.

Plus, it would likely be unconstitutional anyway and be tied up in the courts for many years.

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    The United States didn't sign the Convention on the Reduction of Statelessness, so that international convention does not apply to the US. – Philipp Nov 1 '18 at 11:53
  • @Philipp it doesn't matter. So they make someone stateless, what are they going to do? Can't deport them, no other state will accept them. Same applies to new people born in the US, not just retroactively. – user Nov 1 '18 at 11:59
  • @user the US could imprison them, however. That has actually happened in some countries. An example of such a country is Germany, and that is one reason why the convention on the reduction of statelessness was created. – phoog Nov 1 '18 at 13:45
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    @user I agree that it would be pointless, but some people might find it worthwhile. Singling groups of people out for persecution has always been popular in some circles despite logical arguments against it, including showing that it is a poor use of resources. – phoog Nov 1 '18 at 15:28
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    "due to the international convention on not making people stateless." The U.S. routinely and constitutionally ignores both treaties and customary international law when the U.S. Constitution or a constitutional U.S. statute, subsequently enacted, provides otherwise. Also, someone who loses citizenship isn't necessarily "stateless". Such a person might be a "U.S. national" or might be declared a national of their parent's country of citizenship, in the absence of birthright citizenship. Many children of non-U.S.citizens born in the U.S. have dual citizenship. – ohwilleke Nov 2 '18 at 17:44
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Currently there is a debate going on if changing the US citizenship principle from jus soli to jus sanguine would require a constitutional amendment or not. We have a question which deal with this issue. The majority consensus seems to be that it would require to change the constitution, but just because it's the majority opinion does not necessarily mean it is correct. In the end this might be a matter which still needs to be settled by the supreme court.

If you believe that a constitutional amendment is not required, then any law which retroactively says that certain people were never US citizens and thus certain situations need to be re-examined would be an ex post facto law (a law which retroactively changes the legal relevance of certain events), which is prohibited by Article 1 Section 9 of the US constitution. However, it might be legally possible to phrase said law to revoke citizenships from the moment the law comes into effect. In other words, the person was an US citizen from their birth until the law came into effect, but now isn't a citizen anymore. In many cases, that could make the affected person stateless, which would put that person in a very unfortunate situation. Whether the authors of such a hypothetical law would want this is speculaton, though.

If you believe that a constitutional amendment is required, then anything which would be needed to make that amendment work the way the authors want it to work could be added in that amendment, including an exception to Article 1 Section 9.

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    An executive order is not a law, however, so an order to change the interpretation of existing law is not an ex post facto law. – phoog Nov 1 '18 at 13:42
  • I might be missing a bit, but an Executive Order (the instrument discussed) isn't a law, so it can't be an ex post facto law. That said, I suspect the Supreme Court may look at its ancient 4-pronged definition of ex post facto laws, and decide the same 4 principles apply to Executive Orders. – MSalters Nov 5 '18 at 13:03
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First off, if Trump carries through on what he is proposing, birthright citizenship wouldn't be revoked. The definition of who is eligible for it would be narrowed to exclude anyone who was born to parents in the country illegally.

Would it be retroactive? Probably not. Courts in general tend to shoot down retroactive laws, as they can punish people who acted in good faith.

The proposal will be in for a very rough ride in the courts as it is. Adding a retroactive clause would insure its defeat, something those who are proposing it are well aware of.

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Well, birthright citizenship ain't gonna be revoked, so the practical details of what would happen aren't meaningful, but in general, a citizen cannot be stripped of his citizenship by statute, only by his own act; either he gives it up of his own volition, or he acquired it fraudulently in the first place, by for example, concealing a history of war crimes.

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    If the interpretation of constitution changes, people who had been "purportedly" citizens could be found never to have been citizens in the first place. That would be legally different from stripping citizens of their citizenship, and more analogous to the case of those who acquired their citizenship by fraud, for such people are also deemed never to have been citizens. The naturalization is revoked, not the citizenship. This can even affect family members' citizenship (Chapter 3). – phoog Nov 1 '18 at 14:00
  • But in this case, the revocation of naturalization is not relevant, since the person would be (by the current interpretation as of the time of their birth) a born citizen, not a naturalized citizen. Also, it would be an incredible stretch of the concept of "fraud" to apply this to a person who did nothing on their own - they simply existed. Any fraud would accrue to the parents - but I seriously doubt that this could be stretched to cover them either, at least not in all cases. As an example, a pregnant tourist giving birth early wouldn't be guilty of any fraud under any normal interpretation. – Laughing Vergil Nov 1 '18 at 23:29
  • @ Laughing Vergil - Your comment prompts me to consider the actual text of the 14th. One thing I notice is the absence of any reference to the parents of that person being born in the US, more specifically citizenship (as written) is not subject to the status of the parent(s). It would be up to the court to interpret that the founders neglected to include the parental status and how that would be applied. But as it stands the only link between parental status and "any person born..." is the interpretation that a child born of diplomats has conferred immunity. – BobE Nov 2 '18 at 15:48
  • @BobE -- and even that is incidental. If we granted an envoy some honorary status such that she had diplomatic immunity but her family did not, and she gave birth in the US, by my reading, that child would be a citizen. – Malvolio Nov 2 '18 at 15:54
  • @Malvolio that is in fact the case. Lower-level diplomatic staff have "official acts" immunity only, which does not extend to their family, and children of those people who are born in the US are indeed US citizens. – phoog Nov 2 '18 at 16:25

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