‘Good luck’: DeSantis’ promise to end birthright citizenship is easier said than done

MIAMI — Andressa Reis, a 29-year-old from Coconut Creek, repeatedly refers to her U.S. citizenship status as a “privilege.” She was born in Florida after her newlywed Brazilian parents, who were in the United States at the time, decided to start a family.

“It was pretty common within my community to have people who were undocumented,” Reis said in an interview with the Miami Herald. “So I grew up recognizing the privilege I had. I didn’t have to go through a quarter of the fight that most people do.”

Florida Gov. Ron DeSantis, however, is promising that if he is elected president, he will eliminate the constitutional guarantee of citizenship for children of undocumented immigrants born in the United States.

DeSantis made the promise to end birthright citizenship this week as he unveiled a host of hardline immigration policies meant to appeal to conservative voters. Former President Donald Trump also vowed years ago to do so through an executive order and, though he never followed through, has renewed the promise for the 2024 campaign.

But legal experts — and even some Republicans — are skeptical of the proposal, which would likely run into legal hurdles.

“It’s unrealistic,” Republican former U.S. Rep. Carlos Curbelo, who condemned Trump’s proposal in 2018, told the Herald. “It wouldn’t even solve much considering most people who immigrate illegally are seeking economic opportunity — not the opportunity to birth citizens.”

Curbelo lost his 2018 reelection bid to represent a majority-Hispanic, Miami-area swing seat about a week after Trump first said he’d end birthright citizenship. Curbelo said that such a proposal may draw some attention from conservative voters in a Republican presidential primary, but wouldn’t amount to much beyond that.

“It can get you some attention in a GOP primary, but it will have a cost with Hispanic voters and swing voters in a general election,” he said.

A spokesperson for U.S. Sen. Rick Scott, DeSantis’ predecessor in the governor’s mansion, said the senator opposes any incentive for citizens of other countries to enter the U.S. to give birth to an American citizen. But the senator, who is up for reelection next year, believes securing the border is the answer.

“Senator Scott has said we should never tolerate that, and should put an end to it, but that ANY proposal should start with securing the border — that’s the answer to this and every other immigration problem we currently have,” McKinley Lewis, the senator’s communications director, said.

Scott is seeking reelection to the Senate.

The campaign is mum on details

DeSantis has made the proposal to end birthright citizenship a key part of his plan to overhaul the nation’s immigration system if he is elected president. He said he will do what Trump couldn’t, but he has yet to provide specifics on exactly how he would plan to execute such a plan.

A spokesperson for his campaign did not respond to questions from the Herald about how he plans to end birthright citizenship, including whether he would attempt to revoke that right retroactively or through an executive order.

A written outline of the border security plan released by the campaign on Monday simply noted that the governor “will take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States.”

“Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration,” the campaign said in unveiling the proposal. “It is also inconsistent with the original understanding of 14th Amendment, and DeSantis will force the courts and Congress to finally address this failed policy.”

That policy may have impacted DeSantis’ own lineage. A century ago, DeSantis’ great-great-grandmother, Luigia Colucci, left Italy and arrived at Ellis Island. She was pregnant at the time.

Colucci was nearly barred entry. While she crossed the Atlantic Ocean, the U.S. Congress passed the Immigration Act of 1917. Among other restrictions on “undesirable” immigrants, it barred illiterate people from entering the United States. Colucchi couldn’t read or write, according to immigration documents obtained by a professional genealogist, according to the Tampa Bay Times.

To do away with birthright citizenship, DeSantis will have to face the 14th Amendment of the U.S. Constitution, which states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

That clause was included mainly to overrule the U.S. Supreme Court’s infamous Dred Scott decision, which held that Black slaves were not citizens, Kunal Parker, a law professor at the University of Miami, said. For that reason, he noted, the amendment’s language is “actually pretty clear.”

Parker said that doing away with birthright citizenship would likely require amending the U.S. Constitution — an extraordinarily difficult process, especially in the country’s current political environment. Amendments may be proposed either by Congress, through a joint resolution passed by a two-thirds vote, or by a convention called by Congress in response to an application from two-thirds of state Legislatures.

DeSantis could try to force Congress to act, though any piece of legislation ending birthright citizenship would almost certainly be subject to ardent legal challenges.

“If it’s through legislation, the risk is that it would be unconstitutional in the context of the meaning of the 14th Amendment,” Parker said, also noting that the modern day Supreme Court would be highly unlikely to overrule longstanding legal precedent on the matter. “And if he’s trying to amend the Constitution — well, good luck.”

In 1967, the Supreme Court raised concerns about revoking birthright citizenship in a case involving a federal law stripping the citizenship of Americans who voted in foreign elections. In a 5-to-4 ruling, the court said the 14th Amendment is designed to “protect every citizen of this Nation against a congressional forcible destruction of his citizenship.”

“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship,” Justice Hugo. L. Black wrote in the 1967 decision in Afroyim v. Rusk.

Leandro De Assis, a 34-year-old software engineer who lives in Boca Raton, would potentially be impacted by DeSantis’ proposal, if successful. He says the idea is “beyond ridiculous.”

“If you were born in America you can proudly say you’re an American citizen,” De Assis said. “To remove that possibility, even if it’s not retroactively but for future generations, that’s a step backwards. If we want to move forward, we have to embrace all the people, be more about the people, and not about the two different sides of people.”

DeSantis’ track record

Whether DeSantis will be able to deliver remains to be seen.

DeSantis’ call to end birthright citizenship is only one item in a long list of hard-right immigration and border security policies unveiled this week, including finishing construction of a wall along the U.S. southern border, deputizing state and local governments to arrest and deport migrants and establishing “appropriate rules of engagement so that those trying to smuggle drugs into the United States are met with the use of force.”

Twice this week, DeSantis advocated for the use of deadly force against suspected drug traffickers caught breaking through border barriers, warning that they would end up “stone-cold dead.”

The policy proposals underscore how hardline views on immigration and border security have come to dominate Republican primary politics in the years since Trump launched his first presidential bid in 2015, railing against undocumented immigrants, “chain migration” and so-called “anchor babies,” children born to non-citizens in the U.S. who could help give their families a path to legal residency.

At the time, those remarks drew derision from fellow Republicans, including Jeb Bush, the former Florida governor and unsuccessful 2016 presidential candidate, who pushed back on Trump’s threats to end birthright citizenship by declaring it a “constitutional right.”

“Mr. Trump can say that he’s for this because people are frustrated that it’s abused,” Bush told CBS News in an interview in 2015, shortly after Trump launched his White House campaign. “But we ought to fix the problem rather than take away rights that are constitutionally endowed.”

As Florida governor, DeSantis has shown a willingness to make unilateral decisions on immigration issues through executive orders and administrative rules, and has tested the limits of his gubernatorial powers with other actions, including creating a state-funded program to transport migrants anywhere in the country.

Some of his actions have led to several lawsuits, criminal investigations over the treatment of migrants, administration scandals and fixes in state law. DeSantis, however, has delivered on immigration campaign promises — at least to some extent.

For instance, DeSantis vowed to mandate that all Florida employers use the federal electronic system E-Verify system to check the immigration status of all hires. But the Republican-led Legislature approved legislation requiring all public employers and private businesses with 25 or more employees to use the system, while exempting small businesses, employers who hire independent contractors or homeowners who hire people to do work in their homes, such as gardeners, handyman workers and maids.

This year, DeSantis asked legislators to repeal a 2014 law — championed by DeSantis’ own lieutenant governor, Jeanette Nuñez — that has allowed young undocumented immigrants known as Dreamers to pay in-state tuition at state colleges and universities. But the proposal went nowhere in the Legislature, after a weeks-long behind the scenes effort led by a group of Dreamers.

The dynamics at the state level will be different at the federal level.

“When we go in on day one we’re gonna marshal every bit of authority that we have, will work with Congress when we need to, we’ll take executive action when we can, and it will be a day one priority, and you’re gonna see a big change very, very quickly,” DeSantis said at a campaign event in Texas on Monday.

Parker, the UM law professor, reiterated that more specifics are needed to see how DeSantis plans to get things done.

“It’s part of a political campaign, and I think a lot of people say things in campaigns that they think their electorate wants to hear,” Parker said. “It’s not actually so clear how he can deliver on this. He hasn’t offered a theory for why the children of undocumented aliens should be excepted from the reach of the 14th Amendment.”