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Arizona’s Next Step On Immigration: Banning “Anchor Babies”

The author of Arizona’s controversial immigration enforcement law is preparing for the next step in his crusade, and it promises to be even more controversial than the recently passed law:

The author of Arizona’s controversial immigration law is considering a new proposal that would block the children of illegal immigrants from becoming citizens if they are born in the United States.

Critics of the bill Republican state Sen. Russell Pearce is weighing say it would fly in the face of the 14th Amendment to the Constitution, which grants citizenship to anyone born within the country.

Pearce has been hinting for months that he may introduce legislation targeting so-called “anchor babies” but had not detailed his plan until an interview last week with Time magazine.

“This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we’ve created,” Pearce said of Hispanic immigrants.

Pearce contended that the bill would not violate the 14th Amendment, saying only that “we would write it right.”

It’s difficult to see how that could be possible given the clear language of Section One of the 14th Amendment:

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

The Supreme Court has only been called on to interpret the meaning of this provision as it applies to citizenship once, in United States v. Wong Kim Ark, 169 U.S. 649 (1898), where it said:

[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

(…)

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

This interpretation is supported by statements made by at least one of the framers of the 14th Amendment:

The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”

In other words, the children born in the United States are citizens regardless of the citizenship status of their parents, the one exception being children of diplomats.

Despite the clear language of the 14th Amendment, though, Arizona seems prepared to take this radical step, as indicated by the comments of Governor Jan Brewer this weekend when she said that people who are here illegally can just take their children with them when they leave, regardless of the child’s citizenship status:

For those of us who viewed the Arizona law as dangerous not just because of it’s content, but because of the slippery slope it represented, this would seem to stand as confirmation that we were right.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Anderson says:

    I think you’re correct, but one could play with “domicile” in that 1898 decision.

    Still, the amendment’s text is clear. Illegal immigrants are obviously subject to our jurisdiction (or we couldn’t try them for crimes).

    Thing is, you could probably drum up huge support for repealing that part of the 14th Amendment. *That* is where Mr. Arizona Redneck should be focusing his efforts.

    Like or Dislike: Thumb up 0 Thumb down 1

  2. sam says:

    I’m on tenterhooks waiting to see the language of the statute.

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  3. PD Shaw says:

    Plus, this is particularly bizarre legislation at the state level. It probably also would run afoul of the privileges and immunities clause by discriminating against citizens of other states.

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  4. sam says:

    Not to mention the Supremacy Clause.

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  5. John Cahill says:

    If they stop the jobs, stop the handouts, food stamps, rental assistance, college tuition, and all the other bennies, they will go home, deport themselves, AND take their kids with them.

    Jan Brewer for President!

    Like or Dislike: Thumb up 1 Thumb down 0

  6. Michael says:

    States don’t have citizens, they have residents. Citizenship is a national attribute. I don’t see how Arizona could possibly decide their own rules of citizenship through the application of state laws. Am I missing something? Is this being proposed as an amendment to the US Constitution?

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  7. Michael,

    As I understand it, the law being considered would bar state employees from issuing birth certificates to children born of illegal immigrant parents in the State of Arizona.

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  8. Rob Miles says:

    Granting the 14th Amendment being interpreted in such a manner that children born here are US citizens, I still fail to see how that should change the parents status in any way. If the parents are not legal residents of the US in some way or another (and are therefore illegal immigrants), their children being legal citizens doesn’t change that. It is right and proper to treat the parents, who are illegal immigrants, the same way you would treat illegal immigrants who do not have children.

    But what to do with the children, who are legal citizens? The parents have the choice at that point to leave them here, either with family members who are legal residents, or in the foster care system, or they can take the children back with them to their own country. Of course, the children maintain citizenship status, and can return whenever they choose. And the parents can even return, as long as they go through the proper channels.

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  9. sam says:

    “As I understand it, the law being considered would bar state employees from issuing birth certificates to children born of illegal immigrant parents in the State of Arizona.”

    But that immediately raises an equal protection claim. And, Michael, the language of the 14th says:

    Section 1. 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.

    Which asserts state citizenship.

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  10. Sam,

    Exactly right.

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  11. Paul says:

    Rob, one of the only ways for an unskilled laborer to get a visa, greencard, or citizenship is to apply as a family member of a US Citizen. Having a baby in the US then allows for the parents
    to apply as legal immigrants.

    There simply is no other mechanism in our immigration laws to allow people that aren’t highly paid college graduates to get into our country legally.

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  12. Herb says:

    This anchor baby thing just exposes the anti-illegal immigrants as xenophobic frauds. In almost any other context, they can say “See, they broke the law! They should be deported!” In this case, following the law is the problem, and since they can’t rightly break it, they want to change it.

    Good luck !

    It should be noted that the biggest supporters of Arizona’s hardon for illegal immigrants usually say stuff like this:

    “If they stop the jobs, stop the handouts, food stamps, rental assistance, college tuition, and all the other bennies, they will go home, deport themselves, AND take their kids with them.”

    The abject ignorance in this statement burns…..

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