Legislative attempts to overturn Wong Kim Ark
In response to public reaction against immigration
[116] and fears that U.S.-born children of illegal immigrants could serve as
links to permit legal residency and eventual citizenship for family members who would otherwise be ineligible to remain in the country,
bills have been introduced from time to time in Congress which have challenged the conventional interpretation of the Citizenship Clause and have sought (thus far unsuccessfully) to actively and explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens.
[196] As one example among many, the "Birthright Citizenship Act of 2009"—introduced in the
House of Representatives of the
111th Congress as H.R. 1868, by Representative
Nathan Deal of
Georgia—was an attempt to exclude U.S.-born children of illegal immigrants from being considered subject to the jurisdiction of the United States for purposes of the Citizenship Clause.
[197] A similar proposal—named the "Birthright Citizenship Act of 2011"—was introduced in the House as H.R. 140 in the (
112th) Congress on January 5, 2011 by Representative
Steve King of
Iowa,
[198] and in the
Senate as S. 723 on April 5, 2011 by Senator
David Vitter of
Louisiana.
[199] Neither bill was discussed in Congress prior to the end of the session.
Since an act of Congress challenging the accepted interpretation of the Citizenship Clause might very possibly be ruled unconstitutional by courts choosing to rely on
Wong Kim Ark as a precedent,
[187] proposals have also been made to
amend the Constitution so as to override the Fourteenth Amendment's language and deny citizenship to U.S.-born children of illegal aliens or foreign visitors. For example, Senator Vitter of Louisiana introduced Senate
Joint Resolution (S.J.Res.) 6 in the 111th Congress, but like H.R. 1868, it failed to reach the floor of either house of Congress before the 111th Congress adjourned on December 22, 2010.
[200] Vitter reintroduced this same proposed amendment as S.J.Res. 2 in the 112th Congress on January 25, 2011; it was not brought up for discussion or voted upon in either house of Congress.
[201]
In 2010 and 2011, state legislators in
Arizona introduced bills proposing to deny regular
birth certificates to children born in Arizona whose parents could not prove they were in the United States legally. Supporters of such legislation reportedly hoped their efforts would cause the issue of birthright citizenship for U.S.-born children of illegal aliens to reach the Supreme Court, possibly resulting in a new decision narrowing or overruling
Wong Kim Ark.
[202][203][204]
On October 30, 2018, President
Donald Trump announced his intention to issue an
executive order abolishing birthright citizenship for U.S.-born children of non-citizens.
[205] On this same date, Senator
Lindsey Graham of
South Carolina said he would introduce legislation in Congress to accomplish the same thing.
[206]