The Supreme Court’s incomplete decision on the executive order denying birthright citizenship to children of undocumented immigrants has historic implications for the future of the United States.
Civil rights and immigrant advocacy organizations believe that if birthright citizenship is ultimately denied to children of undocumented immigrants, it would be approaching a science fiction scenario, with an underclass of people without a state and without clear rights.
“This executive order is directly contrary to our Constitution, values, and history, and would create a permanent, multigenerational underclass of people born in the United States but denied all their rights,” said Devon Chaffee, executive director of the National Civil Liberties Union (ACLU) of New Hampshire, one of the groups that challenged the executive order against birthright citizenship.
“This would require hundreds and thousands of lawsuits to be filed in the states so that there could be a nationwide impact, and while all this is happening, many people are harmed,” says immigration attorney Rafael Borrás.
Under the 14th Constitutional Amendment, enacted in 1868, all persons born in the United States, regardless of their immigration status, automatically acquire U.S. citizenship.
Thirty years later, the amendment was put to the test in the case of Wong Kim Ark, the son of Chinese immigrants born in San Francisco in 1873, who was denied entry to the United States in 1895 upon his return from a trip to China.
In 1898, the Supreme Court ruled in his favor in a 6-2 decision, affirming that every person born in U.S. territory, regardless of the immigration status of their parents, is a U.S. citizen.
Despite the legal precedent, President Trump’s executive order argues that the spirit of the amendment applies to slaves but not to people who entered the United States illegally.
For now, the Supreme Court has only decided the scope of the federal judges’ decisions but has not ruled on the constitutionality of the presidential executive order.
So, in less than 30 days, a total of 28 Republican states could implement it unless a new lawsuit filed after the ruling by the ACLU and other organizations is successful.
It is true that many countries in Europe and Asia do not grant citizenship by birth (jus soli), but rather by blood ties (jus sanguinis). This is the case in Spain, Germany, France, China, Japan, Russia, and Switzerland, among others.
But the magnitude of the impact would not be the same as in the United States.
According to the Pew Research Center, some 4 million Americans have at least one undocumented parent. And every year, 255,000 babies are born in the same condition.
“A self-perpetuating multigenerational underclass would be created, in which US-born residents would inherit the social disadvantage of their parents and even, over time, their grandparents and great-grandparents,” agrees the Migration Policy Institute (MPI).
That is, they would not be citizens of the United States, but neither would they necessarily be citizens of another country. They would be in a legal limbo. These people would not be able to vote, access certain public benefits, or obtain documents such as passports. They would live at risk of deportation, even if they were born and lived their entire lives in the United States.
The principle of equality before the law would be violated: children of undocumented immigrants would have fewer rights than other children born in the same country.
Most belong to racial or ethnic minorities, especially of Hispanic origin, which reinforces historical disparities. Growing up without citizenship would limit their educational, employment, and economic opportunities, perpetuating a structural social disadvantage.
If the parents’ country of origin doesn’t automatically recognize the child as a citizen, the child could be left without a nationality recognized by any country. This wouldn’t just be an immigration policy, but a profound redefinition of the principles and values of what it means to be an American.
