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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?
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.
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.
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.
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.
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.
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.
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.
