US birthright citizenship challenge: Why countries must retain the right to determine who will be citizens

The US Supreme Court (SCOTUS) is hearing a case involving denial of citizenship by birth to some categories of persons living in the country. Through an executive order issued on Day 1 of his second term in office, Donald Trump signed a decree intended to protect the “meaning and value of American citizenship”. Through this decree he ended birthright citizenship for kids of illegal immigrants (aka undocumented immigrants), or even children of legal immigrants who may become permanent residents in future (like H1B workers or those on student visas).

Under the US 14th amendment, anyone born in the US can automatically become a citizen. The amendment says, inter alia, that “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” 

The importance of this restriction of birthright citizenship to Trump’s MAGA base, which includes everyone from white supremacists to people who feel threatened by the influx of people from multiple races on local jobs and culture, cannot be overstated. Trump himself was present for the hearing in the Supreme Court. 

Though informed commentators believe that the Supreme Court will probably uphold birthright citizenship, there is a strong case for preserving sovereign power to determine who can or cannot become the citizen of a country. If countries are not at liberty to decide who their citizens should be, and that is to be decided by old norms of citizenship by birth or even naturalisation, then they can never control their borders.

For dyed-in-the-wool “liberals”, easy citizenship rules are part of ideology. They are in favour of easy migration and citizenship rules because they believe that people should have a right to move to any place for work and livelihoods.

However, today even some liberals realise that inundating one’s own country with migrants who may not share any of the values of the locals is a trap, and many of them are making rules to make illegal immigration tougher. The European Parliament recently passed a law to allow member-states to build deportation centres in third countries and banning the re-entry of deported migrants. The United Kingdom signed a deal with Rwanda to host and maintain illegal immigrants till a decision is taken on their entry. The Conservative government passed a law to this effect, but Labour under Keir Starmer has rescinded the law, and Rwanda is now demanding compensation from the UK for going back on the deal.

Political sentiment is clearly moving against easier immigration, leave alone granting of citizenship to “people not like us”. Europe and America have seen a rise in anti-immigration sentiment, as the rise of parties like Marine le Pen’s National Rally in France or Germany’s Alternative for Germany (AfD), or Britain’s Reform Party shows. Most conservative parties, including India’s own Bharatiya Janata Party, do not want immigrants changing internal demography.

Immigrants are generally deemed to be good for any economy since they may work for lower wages and in jobs that locals do not want to do. Or they may bring new skills needed by the economy.

However, one wonders how far one can stretch this argument in the age of automation and artificial intelligence (AI), where human labour can substantially be replaced in most labour-deficit countries with technology.  

More than job losses, what locals feel most strongly about is the sense of cultural loss and dilution, resulting in a lower sense of common citizenship. 

The short point is this: when circumstances change, one must review ideas from the past for current validity. And this includes birthright citizenship, or even naturalisation.

According to Citizens International, which promotes the idea of dual citizenship, there are five broad kinds of citizenship: by birth, by descent, by marriage, by naturalisation and by investment. The portal says there are 35 countries that offer citizenship by birth, while another 40 offer birthright citizenship, but with some riders. That’s 75 in all, which is a minority of countries in the world. India is one of the latter 40 offering birthright citizenship with some caveats. There are 193 countries in the UN, excluding Palestine and the Vatican. 

Pew Research suggests that there are 32 countries offering birthright citizenship, and most of them are in the western hemisphere. 

What is the point of sticking to the idea of automatic birthright citizenship, when the vast majority of countries do not do so, or are unwilling to allow drastic demographic change?

Consider what the United Arab Emirates (UAE), arguably one of the most liberal Arab countries, does. Its population is dominated by expats, 88 percent of them, and few of them ever obtain citizenship. But it is a liberal country by Islamic standards, and recently allowed the Swaminarayan sect to build a temple there - something unthinkable in any Islamic state. The question to ask is this: would the UAE be as liberal as it is today if it had allowed for easy citizenship, which may then have fundamentally changed its culture and demography? One reason why the UAE is being attacked more than other Gulf nations by Iranian drones and missiles is that it is ideologically a huge challenge to the theocratic state across the Strait of Hormuz. A successful and multi-ethnic UAE is a standing reminder to the clerics of Shia Iran that their bigotry is past its sell-by date.

Regardless of where you stand on birthright citizenship, the tradeoffs need to be understood. The world does need migration so that those in need of livelihoods or refuge from repressive regimes can be protected. Not all the skills needed in a country can always be found within. It follows that immigrants must be allowed in on humanitarian and/or economic grounds; it does not follow that they must all be made citizens by birth or even naturalisation. India’s east and north-east has been inundated by Bangladeshi migrants, partly because of Islamist repression in Bangladesh under all regimes, whether they formally remained secular or not. Or else the share of Hindu population in Bangladesh would not have continuously fallen from 31 percent in 1947 to less than eight percent now. The Citizenship Amendment Act, 2019, was intended to fast-track citizenship to a few thousand of these illegal migrants, but even so it provoked a backlash from “secularists” who claimed that it discriminated against Muslims. 

If a country cannot choose whom to give citizenship, and put those who are persecuted and those who may belong to the persecuting community on a par, where is its sovereignty? It is one thing to allow illegal migrants to work for a living, quite another to make them citizens automatically after a few years or by birth. The UAE example shows that it is better not to confer citizenship too easily in order to maintain your liberality. Nothing destroys liberality more than the fear of cultural and economic inundation.

Not just birth right citizenship, but even naturalisation needs to be re-examined in the light of the changes that have taken place in demography and social attitudes in recent years. 

It is not bigotry if a country retains the right to decide whom it will give citizenship to, though some of those who oppose migrants in general may well be xenophobes or bigots. Good ideas may have bad actors supporting them, but that is not a reason to abandon them.