There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported.

Finding that the distinction in the statute was based on gender-characteristics and that the justification for relying on gender characteristics depended on stereotypes about the role of men and women in raising their children, the Supreme Court held that the differences contained in immigration law violated the Equal Protection Clause.  However, because, the shorter period of time for unmarried U.S. citizen mothers was an exception to the rule that applied to married couples and unmarried U.S. citizen fathers, the Supreme Court held that the extended period of residence should be applied to both unmarried citizen fathers and unmarried citizen mothers and that Congress would have to act if it wants to change that period of residence.

So the issue now becomes whether Congress will act on this invitation.  In this day and age, there are a lot of U.S. citizens — whether in the military, working for the government, or working for a private company — who live abroad and would like their children to be citizens.  On the other hand, the demagogue-in-chief has done his best to smear immigrants.    It will be interesting to see if Congress will even hold hearings to examine this part of immigration law.