The new rule on citizenship for children born abroad to U.S. military service members is lighting up the internet. The Trump administration released a rule today that many think would keep these children from being recognized as citizens. The rule is actually a lot less broad than most people think, it will not impact huge numbers of kids, but my question is why was this change even made?
All children born in the U.S., other than the children of diplomats, are citizens by birth. That is in the 14th Amendment. Although children born abroad to U.S. citizens have been recognized as citizens themselves since at least the 19th Century, that citizenship provision is statutory rather than a part of the Constitution. One little known provision of the statute is that the U.S. citizen parent must have resided in the U.S. for five years prior to the birth abroad of a child in order to confer citizenship on the child.
While that might not seem like a tall order, imagine the child of a soldier, born abroad while the child’s soldier mother is on duty in Germany. That child, named John, then lives most of his childhood outside the U.S. in military bases in Korea, the Czech Republic, and Italy. The child becomes a man and at 18 he joins the army. Under current rules, his time in the army, even if spent abroad, counts as “residence in the United States.” So if he has a child in his mid-20s while he and his family are stationed in the United Kingdom, John’s child will be a citizen of the United States because John’s time in the military will “count” towards the five years of “residence in the United States.”
Under the new rule, that will no longer be true.
This does not mean that most children born to U.S. Service members abroad will no longer get automatic citizenship. Only a fraction will be affected. There is also a provision making harder for children abroad to derive citizenship from naturalizing parents.
It seems weird that the Trump people released a rule that hurts a relatively small number of soldiers, sailors, air staff, and Marines but which generated huge bad publicity. So the question is: Why did they do this?
This is part of a broad attempt by the anti-immigrant zealots in the administration, who include Trump himself, to destroy birthright citizenship generally. While this rule will only go after a sliver of citizens by birth, it reflects the same animus that we see in Trump’s delegitimization of the 14th Amendment’s Citizenship Clause and his attack on midwife birth certificates as proof of citizenship. The Trumpsters are on a broad offensive against both legal immigration and birthright citizenship.
These are the opening moves.
I just want to note that way this new policy was rolled out was extremely unprofessional. The release designed to explain it was confusing and self-contradictory. It looked like it was written by a fist-year law student. The administration tried to explain it in a Tweet, rather than give detailed written guidance. The press officer for the Department of Homeland Security’s Citizenship and Immigration Service refused to answer questions about it from the Associated Press. This sowed confusion and fear throughout the military. Bad though this new policy is, it is not that broad, and the administration should have made that clear.