The next big battle on the illegal immigration front is beginning to take shape. A group of state law-makers plans to challenge the idea that babies born in the United States to immigrant parents should automatically be granted citizenship. So-called “anchor babies” have always been an integral part of the overall illegal immigration debate, but this particular aspect of it centers around the Constitution’s Fourteenth Amendment which reads, “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.” Does eliminating birthright citizenship require a constitutional amendment?
Legislators from five states don’t think so. In Washington, D.C. on Wednesday, they revealed legislation designed to force the issue into federal courts. They intend to pass laws establishing a criteria for “state citizenship,” defining who would or wouldn’t be a citizen in a particular state. The lawmakers add that the model bill doesn’t confer any special rights, benefits, privileges or immunities, nor would babies born to illegal immigrants in any state which passes the law be stripped of any rights or benefits they already receive.
Kris Kobach, a University of Missouri-Kansas City School of Law professor who helped draft SB 1070 (Arizona’s state immigration law), claims the bill neither upends the Fourteenth Amendment, nor the federal government’s power to make immigration law. The “very calculated first step” asserts the right of a state to define the terms of citizenship within that state–along with a separate mutually-agreed upon, multi-state compact to keep records regarding whether someone was born to U.S. citizen parents, or not. Proponents of the legislation believe that creating two different kinds of state birth certificates, one for the children of citizens and another for the children of illegal immigrants, could spark a numerous lawsuits which might resolve the conflict in their favor. “The bottom line: What we want is our day in court,” said Arizona state Rep. John Kavanagh (R-Fountain Hills).
Reality check? Such a pact between the states would require Congressional approval, a long shot at best in the Democratically-controlled Senate.
Butler County Republican Daryl Metcalfe of western Pennsylvania takes a different tack. He claims the Fourteenth Amendment has been “misinterpreted,” and that the word “jurisdiction” provides the key. “It was very clear that to be under the jurisdiction thereof meant that your parents had an allegiance to the United States of America. That has been something that has been ignored, as our government has allowed for citizenship to be granted to children of foreign nationals,” he said Tuesday.
As of now fourteen states–Arizona Alabama, Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, Pennsylvania, Texas and Utah–are on board with this attempt to eventually trigger a Supreme Court review of current federal policy (as opposed to law or court decisions) on what Rep. Kavanagh referred to as granting citizenship “based on GPS location at birth.” Randy Terrill, an Oklahoma Republican state representative working on an anti-birthright bill there, goes further. “When taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the U.S.,” he said.
Opponents of the measure consider such an attempt a waste of time and money. “I don’t know what they think they’re doing,” said Paul Bender, professor of law and dean emeritus at Arizona State University’s Sandra Day O’Connor College of Law. “I guess they want to create a controversy, hoping for what? That the Supreme Court will change its mind, or Congress will do something? I don’t know, but it’s pretty clearly unconstitutional.” Mr. Bender added that even if the bill got to the Supreme Court, it doesn’t necessarily mean the basic question of whether or not birthright citizenship applies to children of illegal immigrants would even be addressed.