Legislation and court cases have sought to dismantle what Donald Trump calls ‘the biggest magnet for illegal immigration’ since the 19th century, taking on the near-impossible task to revoke a constitutional right

By Scott Keyes

Republican presidential frontrunner Donald Trump caused his weekly public stir when he released his first policy paper on immigration. In addition to its proposal to build a massive wall along the southern border and somehow making Mexico foot the bill, it also called for an end [to] automatic citizenship for anyone born on US soil, otherwise known as birthright citizenship.

Trump’s campaign called birthright citizenship “the biggest magnet for illegal immigration” and even pledged to test out the constitutional guarantee in courts. But despite the uproar following Trump’s pronouncement, this is far from the first time conservatives have proposed rewriting constitutional law in order to end birthright citizenship, to no avail. In the 19th century and more recently, conservatives have repeatedly tried to undo birthright citizenship, both in Congress and in the courts.

“We are living through a bad deja vu,” Karen Tumlin, managing attorney at the National Immigration Law Center, said of the issue’s resurgence. “I think that what it shows is that they are willing and comfortable scapegoating immigrant families and therefore Latino families.” She said the idea wasn’t “a viable legal argument” but rather a “desire to exclude some population from citizenship”.

The idea of automatic citizenship was once fairly uncontroversial. The concept was “originally English common law that carried over to the colonies”, said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center. The only exceptions in early American history were rare extenuating circumstances, such as the children of foreign diplomats based in the US or kids born in an invading army.

However, that stasis imploded when the US supreme court handed down its landmark Dred Scott ruling in 1857, declaring that no African American, whether free or enslaved, could be an American citizen. The decision is widely considered to be one of the court’s most dreadful rulings, and following the civil war, Congress debated how best to undo it. Reformers ultimately settled on including birthright citizenship in the text of the 14th amendment as a direct repudiation of Scott and reinstatement of earlier norms. Congress was, in effect, “embodying into the constitution what had previously been traditional”, Wydra said.

Much like immigration skeptics today, opponents in the mid-1860s argued furiously that children of immigrants should not receive the benefits of citizenship. Instead of Latinos being the subject of nativist angst, though, the targets were mostly Chinese or Roma immigrants. But supporters of the 14th amendment measure expressly argued that it would apply to children of immigrants, and the amendment was ultimately enacted in 1868. When the concept of birthright citizenship was challenged in court 30 years later, the supreme court ruled in United States v Wong Kim Ark that any child born in the US was a citizen, regardless of his or her parents’ immigration statuses.

Wydra explained that the “genius of the 14th amendment is that as national sentiments ebb and flow, they can’t influence who is considered worthy”. Instead, she said, “the constitution places citizenship above the politics or prejudices of the day.”

The matter was unequivocally settled for a century or so, until 1991 when Republicans in Congress began equivocating.

That year, former California representative Elton Gallegly introduced HR 3605, a bill declaring that only children born in the US to mothers who are legal residents shall be given citizenship. The measure died in committee, but not before gaining 19 co-sponsors and a significant following in the anti-immigration community.

Now, Republicans in every single Congress since 1991 have introduced legislation to undo birthright citizenship. They reached a high watermark of support when 95 House members, including two Democrats, one of whom is now a Republican, co-sponsored then representative Nathan Deal’s Birthright Citizenship Act of 2009.

Though ending birthright citizenship is a cause celebre among many of the party’s conservative activists, it’s not exclusively rightwing members who support such legislation. Over the past two decades, bills to undo birthright citizenship have picked up support from moderate Republicans in the House of Representatives, including former representatives Chris Shays and current MSNBC host Joe Scarborough, Republicans in the leadership including former representatives Dennis Hastert and Tom DeLay, and future presidential aspirants, such as then representatives George Allen and John Kasich, now serving as the governor of Ohio and running for the 2016 GOP presidential nomination. (Kasich has since recanted his earlier support.)

But the legislation’s repeated failure hasn’t stopped Republicans from arguing the matter on the campaign trail. After Trump announced that he wanted to get rid of birthright citizenship, other presidential hopefuls piled on and declared their support. One was Wisconsin governor Scott Walker, who said his immigration plan was “very similar” to Trump’s and backed the business mogul’s call to end birthright citizenship.

Another was Louisiana governor Bobby Jindal, who tweeted a day after Trump’s policy paper that, “We need to end birthright citizenship for illegal immigrants.” What makes Jindal’s support curious is that he received American citizenship after his parents emigrated from India to the US six months before he was born.

Other presidential aspirants have been questioning birthright citizenship long before Trump entered the political scene. Despite his reputation as a moderate on domestic issues, South Carolina senator Lindsey Graham shocked many in 2010 when he declared his opposition to birthright citizenship, the same year that senator Rand Paul announced the same. Others, including senator Marco Rubio, Jeb Bush and Carly Fiorina have said they support continuing birthright citizenship.

One potential benefit to these politicians of endorsing a repeal of birthright citizenship is that it carries a simple message, and yet would be near-impossible to implement.

“It’s pretty clear you would have to amend the constitution to eliminate birthright citizenship,” Wydra said. “That is very difficult to do. It’s not something a president could change on his own.” Indeed, the last amendment to the constitution was ratified in 1992.