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.
The ACLU’s Mary Catherine Roper is also skeptical ”(The Fourteenth Amendment) means everybody born here is a citizen of the United States, it’s pretty clear,” she said believing that nothing accomplished at the state level will be upheld by federal courts. Former Texas solicitor general James Ho envisions chaos: ”It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.” Lydia Guzman, a Latino activist in Phoenix was far more direct. “They call themselves patriots, but they pick and choose which parts of the Constitution they support,” she said “They’re fear-mongerers. They’re clowns.”
Opponents also contend that states with already-battered budgets should not be wasting money on costly litigation likely to go nowhere.
The Fourteenth Amendment was passed in 1868. It essentially (though not specifically) overturned the Supreme Court’s 1857 ruling in Dred Scott v. Sandford, which stated that people of African descent, who had been imported as slaves (along with their descendants), could never be American citizens. The framers of the amendment themselves had intended it to apply specifically to black slaves, but the scope of the law was expanded by two other rulings: the Slaughterhouse Cases of 1873, in which the Court both affirmed the distinction between state and U.S. citizenship with regard to protecting the property rights of slaughterhouse owners in Louisiana; and an 1898 ruling in United States v. Wong Kim Ark, interpreting the citizenship provision as applying to a child born in the United States to a Chinese immigrant couple.
What about other nations? According to Numbers USA, a website dedicated to “lower immigration levels,” the only developed nations which offer birthright citizenship are the United States and Canada; only three other nations with populations greater than fifty million (Pakistan, Mexico and Brazil) do so; and 33 countries in all do, while 122 countries do not. Since 1981, eight countries have repealed birthright citizenship laws: Portugal (1981), UK (1983), Malta (1989), India (1987), France (1993), Ireland (2005), New Zealand (2005) and Australia (2007).
Bottom line? It is beyond question that massive amounts of illegal immigration, long countenanced by both political parties, angers a substantial majority of the American public. So too does the idea a that certain percentage of those illegal immigrants come here with the specific intent of birthing a child on American soil. Yet there is something decidedly hypocritical about elements of the conservative movement, which has long (and justifiably in many cases) complained about progressive attempts to bypass Constitutional amendments, attempting to do precisely the same thing. And it is more than a little ironic that Republicans, whose power within individual state legislatures was substantially elevated as a result of the 2010 election, would now cede much of that power to the courts, exactly like their Democrat counterparts have often done, to get a desired result.
As I write this, Republicans are reading the Constitution aloud on the floor of Congress. Perhaps some of their colleagues from the nation’s state houses should be listening. If birthright citizenship is to be overturned, the Constitutional amendment process is available to do so.