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Birthright Citizenship Review

Senate Republican Leader Mitch McConnell is joining others in his party in calling for a review of the 14th Amendment’s grant of birthright citizenship.

HuffPo:

Senate Minority Leader Mitch McConnell (R-Ky.) officially supports a review of the 14th Amendment to the Constitution, which grants children of undocumented immigrants status as U.S. citizens, his office confirmed to the Huffington Post on Monday.

A spokesman said that the Kentucky Republican believes that “we should hold hearings” on the matter. McConnell had not previously commented on the issue before, the spokesman confirmed.

In offering his support, McConnell becomes the highest-ranking Republican figure to call for examining the reach of the 14th amendment. On Sunday, his chief deputy, Sen. John Kyl (R-Ariz.) told CBS’ Face the Nation that he too would back hearings into revising citizenship laws. Sen. Lindsey Graham (R-S.C.) — a one-time proponent of comprehensive immigration reform — has explicitly called for the 14th Amendment’s repeal.

The statements from GOP leaders give credence to the notion that revising longstanding citizenship laws is quickly becoming a plank of the party’s platform. In the House of Representatives, Rep. Lamar Smith (R-Tex.) has introduced the Birthright Citizenship Act of 2009, which would attempt to deny children of illegal immigrants U.S. citizenship through statute rather than a constitutional amendment (thereby lowering the vote threshold). He has 93 co-sponsors for that effort including Rep. Nathan Deal, the Georgia Republican who is in a runoff to be the party’s candidate for governor.

The Hill adds:

McConnell stopped short of echoing Graham’s call for repeal of the amendment.
“I think we ought to take a look at it — hold hearings, listen to the experts on it,” McConnell said. “I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with.”

[...]

Proponents of comprehensive immigration reform strongly oppose the Republican-led effort, which could play a major role in firing up both the left and right this election year.

The escalating debate on the 14th Amendment comes in the wake of the legal battle between Arizona and the federal government over the state’s immigration law.

Josh Marshall observes, “In a sense this isn’t surprising. Opposition to birthright citizenship — or as its called by anti-immigrant forces, ‘anchor babies’ — has been rising on the right for some time.”  He terms the ploy “crass demagoguery.”

On the one hand, of course, it’s not up to Congress. One way or another: it depends on an interpretation of the 14th Amendment. So if it’s to be changed, the change has to come from the Supreme Court. More generally, though, I don’t think I’ve ever heard it seriously suggested that the 14th Amendment does not in fact guarantee citizenship to every one born in the USA.

He’s right.  FindLaw summarizes the Supreme Court’s rulings on the matter:

The Court has accorded the first sentence of Sec. 1 a construction in accordance with the congressional intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship. 7 Congress’ intent in including the qualifying phrase ”and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, 8 as well as children of members of Indian tribes subject to tribal laws. 9 The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas. 10

In Afroyim v. Rusk, 11 a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. ”[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.” 12

________________

[Footnote 7] United States v. Wong Kim Ark, 169 U.S. 649 (1898).

[Footnote 8] Id. at 682.

[Footnote 9] Id. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).

[Footnote 10] United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).

[Footnote 11] 387 U.S. 253 (1967). Though the Court upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which by a five-to-four decision the Court upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’ power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60-62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion supra pp. 272-76. In the years before Afroyim, a series of decisions had curbed congressional power.

[Footnote 12] Afroyim v. Rusk, 387 U.S. 253, 262 -63 (1967). Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268.

While its main intent was to reverse Dred Scott’s notion that slaves weren’t citizens, the Court pretty quickly broadened the interpretation.  Note that the key rulings date to the late 1800s, within the lifetime of those who wrote and passed the 14th Amendment.

I mostly agree with Josh on this, too:

One would think for these folks that the plain words of the Constitution would be enough to settle the matter. But apart from the Constitution and beyond all the ethical and prudential reasons why birthright citizenship is simply the right policy for the country to follow, consider what it protects against. In many European countries — Germany being perhaps the best example — you have substantial populations of stateless people. In Germany it’s the Turks who came legally or illegally as guest workers, then had children. And these children were born and raised in Germany, speak Germany, but aren’t German citizens. They aren’t Turkish citizens either. And culturally they’re no more Turks than Hispanic kids born in Los Angeles whose parents happened to have been born in Mexico.

This is why, for example, I oppose creation of a “guest worker” program.  All legal immigrants to the United States should have a path to citizenship.

In principle, though, I see no reason why children of illegal immigrants should automatically have American citizenship and right to stay here.  Rewarding bad behavior encourages more of it. And citizenship is a pretty big reward, indeed, given the lengths to which poor Mexicans will go to get across the border to live in constant fear of deportation.  If someone sneaks across the border, gives birth, and is deported in the span of, say, a week, there’s no rationale I can conjure — aside from the technicalities of the 14th Amendment — that we owe the infant anything more than we owe any other Mexican baby.

But where does one draw the line?   It would be a travesty to deport a 16-year-old born and raised in the United States, never knowing any other home, regardless of the parent’s legal status.

Further, this is too small a problem to justify tinkering with the Constitution.  It’s not as if the birthright citizenship policy is the chief draw for illegal immigration in this country, or that we’d see any significant decrease in illegal border crossings if we changed the policy.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. rodney dill says:

    While it sounds right to not allow ‘anchor’ babies citizenship, from articles elsewhere I’ve picked up that it is not that big a problem (numerically) and probably not worth the effort in trying to mess with the constitution. Probably will score a lot of political points for its backers though.
    It would probably work better to have ‘anchor’ babies become citizens and wards of the state, and have the illegal alien parents lose all parental authority. I think the numbers could drop of drastically, but I also don’t think this would fly past the courts.

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  2. Steve Metz says:

    Let me say I take great issue with the Josh Marshall phrase “anti-immigrant forces.”  Being opposed to criminal behavior does not make one “anti-immigrant.”  That’s ideological pap.

    But on to your bigger point, sure it would be a travesty to “deport a 16-year-old born and raised in the United States, never knowing any other home” but, unfortunately, children sometimes pay for the sins of their parents.  Would it be a travesty to take away the family wealth of a 16 year old child of an organized crime figure?

    The best solution, though, might be to change this loophole since, as you note, it reward criminal behavior, but not to make the change retroactive.

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  3. john personna says:

    “This is why, for example, I oppose creation of a ‘guest worker’ program.  All legal immigrants to the United States should have a path to citizenship.”

    So … as soon as someone explains to you that a guest worker is not an immigrant, nor a permanent resident, your opposition will fade?

    I mean, why on earth would a guest worker, with a 6-month pass, be considered an “immigrant?”

    (In Europe guest workers may overstay their visas, and become illegals, but they were not legal immigrants to start with.)
     

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  4. john personna says:

    (I worry that this is another example of making the perfect enemy of the good.  Let’s pretend that without a guest worker program we will mobilize Americans to eject every illegal, and then “look!”, based on that “pretend” we didn’t need the guest worker program at all!)

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  5. Pug says:

    For people who supposedly revere the Constitution, conservatives sure do want to change it.  They have proposed balanced budget amendments, pro-life amendments and others I can’t think of right now over the years.

    There seem to be quite a few things in the Constitution, or not in the Constitution, that conservatives don’t like.  The only amendment I ever remember the “radical Left” supporting over the years was the Equal Rights Amendment, and that was over 30 years ago now.

    But hey, this will get the yahoos fired up big time and get Republican votes.  I still wonder, though, if Republicans hate illegal immigration so much, why do they keep hiring illegal immigrants?  Or maybe those big California farmers and Texas homebuilders are Democrats.

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  6. Steve Metz says:

    There’s not much imperative to revise the Constitution if you don’t take it all that seriously in the first place.

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  7. James Joyner says:

    I mean, why on earth would a guest worker, with a 6-month pass, be considered an “immigrant?”

    The plan on the table a couple years back was essentially permanent status but they’d have to go home when they couldn’t work anymore.  And they explicitly couldn’t become citizens. That’s creation of a second class person.

    I don’t have objection to a very limited term guest visa program, although even those people ought be able to apply for citizenship.

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  8. jpe says:

    Something like an EU system makes sense: they’d have to be born here and then apply.  If they don’t care enough to apply, kick ‘em the hell out.

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  9. Trumwill says:

    Does anyone have a good link to what the numbers are?

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  10. Dave Schuler says:

    I’m in favor of retaining birthright citizenship.  I think it’s one of the factors which makes us different from our European cousins in our favor.
     
    I think a more serious problem is dual citizenship.  I see no way that an individual can participate fairly in the political lives of two different countries.  When the interests of the two conflict the individual will need to choose—a key indication that dual citizenship is not in the interest of the majority of citizens of either country.
     
    Further, dual citizenship weakens the nation-state which I think is a bad thing.

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  11. Dantheman says:

    Pug,

    “They have proposed balanced budget amendments, pro-life amendments and others I can’t think of right now over the years.”  You are missing quite a few.  I’ve seen calls for amendments repealing the 16th (income tax) and 17th (direct election of senators) amendments, adding term limits for Congress, definition of marriage, etc.

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  12. sam says:

    We’re not the only ones facing a baby crisis: Israelis Divided on Deporting Children (http://www.nytimes.com/2010/08/03/world/middleeast/03children.html?ref=world).
     

    Deep divisions emerged here on Monday over the fate of about 400 children of foreign workers who have no legal status in the country and are slated for deportation. The issue has touched on sensitive nerves in Israel, which sees itself as a nation of Jewish refugees and defines itself as a Jewish and democratic state.

    Israeli-born children of foreign workers took part in a demonstration in Jerusalem on July 25. Under new guidelines, about 400 children face deportation. 

    The public debate followed a decision by the cabinet on Sunday to approve a plan for granting status to the children of people who entered Israel with a valid visa or permit but have stayed on illegally.

    Under the new guidelines, based on the length of time the children have been here and their integration in the education system, about 800 of the 1,200 in question are qualified to stay. Their parents and siblings will be entitled to temporary residence permits. The 400 who do not meet the criteria will have to leave, perhaps as soon as within 30 days.

    I particularly liked this comment from an opponent of the deportation:

    “Someone there has lost his bearings,” wrote Eitan Haber, a Yediot Aharonot columnist and a close aide to Prime Minister Yitzhak Rabin in the 1990s, in a op-ed published on Monday. “The State of Israel bombed nuclear reactors, reached Entebbe, wasted billions on light and heavy rail systems that don’t move and paid hundreds of millions of shekels for years to people who did not contribute a single drop of sweat to the state. And now, 400 children, that is what will kill the state? Have you gone mad?”

    It wouldn’t be much of an exercise to substitute our own colossal eff-ups in those sentences and exclaim, “And now, a few thousand babies, that is what will kill the state?” Etc.

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  13. Mdan says:

    You want to stop the flow of illegal immigrants, criminalize the hiring of them to the point where the assets of businesses found guilty of knowingly hiring such people are stripped away and confiscated, akin to law enforcement confiscating assets from drug smuggling and dealing. If it’s a farmer hiring pickers, that farm is confiscated. If it’s a giant meat packing company, shareholders lose their investment. Watch the economic opportunity, and thus the flow of people, dry up rapidly.

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  14. But on to your bigger point, sure it would be a travesty to “deport a 16-year-old born and raised in the United States, never knowing any other home” but, unfortunately, children sometimes pay for the sins of their parents.  Would it be a travesty to take away the family wealth of a 16 year old child of an organized crime figure?

    As difficult as losing family wealth might be, being taken from the country of your birth and taken to a foreign land, would be exceptionally cruel.  One would not lose just wealth, but one’s entire life (friends, family, everything one knows).

    It shouldn’t be that hard to see how this would be a terrible thing to do to a 16 year-old because their parents had, as some point in the past, illegally crossed the border.

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  15. Watch the economic opportunity, and thus the flow of people, dry up rapidly.

    You know what else would dry up if you did that ? Our economy

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  16. john personna says:

    To me the birthright citizenship thing is neither right nor wrong.  It can’t be reduced to some basic truth using rules of logic.  All you can say, is that whatever it is, it is.  The rules should be made clear and honored.
     
    Limiting citizenship to children of children of citizens and legal residents seems reasonable to me, but the current rule doesn’t really bother me.

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  17. john personna says:

    “It shouldn’t be that hard to see how this would be a terrible thing to do to a 16 year-old because their parents had, as some point in the past, illegally crossed the border.”

    We could relate this back to the Maddoff kids.  We don’t consider them guilty unless they were knowing parties … but at the same time we want to recover ill-gotten gains.

    Is citizenship in some cases an ill-gotten gain?

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  18. Steve Metz says:

    @Doug Mataconis  If the U.S. economy is dependent on criminal behavior, I would suggest that there are better solutions than simply turning a blind eye to it.  I support open immigration with the exception of anyone who has shown by their past behavior that they consider our laws optional.

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  19. Is citizenship in some cases an ill-gotten gain?

    Would it not be cruel and unusual punishment to deport someone (especially a minor) to a country they may never have visited?

    I honestly find it troubling that anyone thinks that this is something worth considering.

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  20. Repealing birthright citizenship would move us dangerously close to the citizenship rules of a country like Germany, which are described above.

     

    That’s not a good thing.

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  21. john personna says:

    Your technique Steven, was not to answer my question.
     
    I’ll take it as a starting point then that yes, birth-citizenship can be an ill-gotten gain (by illegal parents for their children).  We then move to hypothetical, family dramas, made for TV movies, about what it would mean for a child.
     
    In this hypothetical situation is the child old enough to grasp “citizenship?”  If so, has the parent told the child of its perilous state?  Or has the parent lied?

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  22. john personna says:

    (I’m not really sure Steven is pitching a self-consistent hypothetical.  In a world where the US did not offer birth-citizenship, parents would make their illegal journey _knowing_ that their children would be illegal.  They would know that this was the new reality they were creating for their family.)

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  23. @John,

    But you are avoiding the central issue–i.e., whether it is morally defensible to deport a 16 year-old to a land not his own because of something his parents did.  I find it morally abhorrent.

    In terms of your question, I will directly answer: in terms of the current wording of the Constitution, the answer is no:  we are not talking about ill-gotten gains.

    Even if we step outside that realm for a moment, I would further argue that there comes a point when one has to balance actions:  where is the justice in deporting a 16 year old because his parents are illegal?  Is that act justified by the illegal status of the parents?

    What if the parents are dead?  Are you going to deport a 16 year old orphan because his parents were illegal?

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  24. Steve Metz says:

    If it required a crime to attain citizenship, then of course it is an ill-gotten gain? 

    Let’s be honest–illegal immigrants sometimes have children in the United States specifically so that they have a reason to stay.

    So there are three options: 1) deport the whole family including a child who may have lived his or her entire life in the United States; 2) deport only the parents, thus splitting the family and potentially leaving the child a ward of the state; 3) allow crime to pay.

    My own position is that we should abolish the law that makes a child of illegal immigrants a citizen, allow children who attained citizenship this way to retain it, but deport their parents once the child becomes 18.  That would minimize the impact on the child while still assuring that crime does not pay.

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  25. Herb says:

    “In principle, though, I see no reason why children of illegal immigrants should automatically have American citizenship and right to stay here. Rewarding bad behavior encourages more of it.”

    What is the bad behavior we’re rewarding here, though? Being born to illegal-immigrants? That’s not “bad behavior.” That’s circumstance.

    If the bad behavior is illegally immigrating to the United States, there are already appropriate punishments for that. In principle, I don’t see why we should “punish” the child for the sins of the father.

    I’m in favor of keeping the birthright citizenship amendment, if only because that’s how I became an American citizen.

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  26. @John:  You are correct, there are different hypotheticals depending on what legal regime one is discussing.  Part of the point of the hypothetical in question (the 16 year-old) introduced, btw, by James, not me, is to consider the implications of changing the constitution.

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  27. I’m in favor of keeping the birthright citizenship amendment, if only because that’s how I became an American citizen

    I suppose that is it the way that most of us became citizens, in fact.

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  28. john personna says:

    “But you are avoiding the central issue–i.e., whether it is morally defensible to deport a 16 year-old to a land not his own because of something his parents did.  I find it morally abhorrent.”

    There are two ways to defend it.  The simple one is “these are our citizenship laws.”  Such laws are always arbitrary.  No market-democracy has an open border.  No country lets “applicant choose.”

    The second argument is to compare your 16 year-old with his cousin back home.  Why is the cousin excluded?  Why does the cousin live his life without the same opportunities?  Because his parents weren’t willing to break the law?  Bad incentive.

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  29. john personna says:

    Herb, I am not “punishing” the child, relative to his cousin.

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  30. John Burgess says:

    Steve: How about those poor kids, children of the Russian spies? Of course, a parsing of the law said that they never were legal US citizens, but didn’t they ‘live their entire lives’ in the US, only to be deported to Russia?
    Unfair? Yes. But then, life is unfair.
    I do know for a fact of pregnant women coming to the US solely to have a child born here. The intent is solely to provide citizenship which, in some 18 years, will be used to ratchet citizenship for parents and extended families who might not otherwise qualify for legal immigrant status.
    Perhaps it’s not the 14th Amendment that conservatives seek to repeal, but the court decisions that seem to have expanded its ‘natural’ reading. Or maybe it is just an attempt to retain a system of government that runs by rule of law and the spirit of the law.
     
     

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  31. Herb, I am not “punishing” the child, relative to his cousin

    Yes, you are.  First, the cousin argument is largely nonsensical.  Where is the basis for bringing that into the conversation?  What about his cousin from legal parents?  What about some random person?

    But, staying with it:  the cousin, at least, grew up in Mexico (or wherever).  He knows the language, the culture and the place.  He has friends and family and the like.

    Did you ever move as a child?

    Have you ever lived abroad?

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  32. john personna says:

    Such fully emotional appeals don’t work with me, Steven.
     
    For me the fact is that there are 6 billion people on the planet, maybe a billion kids who’d like to be Americans.  To say that, in this framework where citizenship is not granted to children of illegals, that is “unfair” is to deny the world.
     
    Or I guess you say that you just “feel” more for the one hypothetical kid, rather than the billion others.

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  33. How about those poor kids, children of the Russian spies?

    I do not know any particulars (were there children?  were they born here? how old are they?  etc.).

    We first response is this:  if they were born here, it would be cruel to deport them to Russia simply because of their parents’ crimes.   Indeed, it would be the worse case scenario for what we are talking about here:  persons with zero knowledge of the country to which they would be deported and persons who thought they were born to American parents.

    By the same token, if they are minor children, it would make sense to reunite them with their parents.  Again:  I would need more details.

    For the sake of argument, let’s assume one of the children is 18, born here and wants to stay.  No, I would not deport him.  Indeed, I see no legal basis to do so.

    And yes:  there are people who come here to have their children here.  I recognize that.  The problem becomes that if we change the Constitution on this issue, then we are going to have larger problems along the lines of what Europe is experiencing with an unintegrated population of non-citizens.  This is not a good idea and would created far more problems than does the anchor baby phenomenon.

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  34. john personna says:

    BTW, I do think the kid who got 16 years of US education is ahead, even when he goes back to a different culture.  I think his cousin would still think he got the better deal.

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  35. Such fully emotional appeals don’t work with me, Steven.

    I don’t see it as such, but rather one of appropriate actions and justice.

    Regardless, it is nonsensical to assert that it is justifiable to deport someone born here and raised here because, after all, there are people elsewhere who would love to live here, too.

    At any rate, we will have agree to disagree.

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  36. I don’t think it’s ever been made clear what happened to the children of those Russian spies. I do recall reading one report that at least one of them was actually 17 years old and was staying in the US to finish school.

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  37. john personna says:

    “And yes:  there are people who come here to have their children here.  I recognize that.  The problem becomes that if we change the Constitution on this issue, then we are going to have larger problems along the lines of what Europe is experiencing with an unintegrated population of non-citizens.  This is not a good idea and would created far more problems than does the anchor baby phenomenon.”


    The common problem there is with any nation that allows a large illegal population to develop.  We have it too, though ours would be all first-generation.

    The problem I have with the hypothetical that we’d deny citizenship but not deport is that it assumes a future error.  If we went with work visas, and an elimination of birth citizenship, then we better deport.  If we don’t what’s the point in changing anything?

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  38. john personna says:

    Steven, we may end up disagreeing, but I’d suggest that you consider that your position logically ends in open borders.  If anyone can get a kid citizenship, then everyone should try.

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  39. The problem I have with the hypothetical that we’d deny citizenship but not deport is that it assumes a future error.

    1)  What about our current situation suggests that in the future we would, all of a sudden, be good at mass deportation?

    2)  All we have to do is look at Germany, France, and other European cases to have some clue as to how this would work out.

    3)  No matter what is done, one is not going to get rid of that 2000 mile land border with a developing state.

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  40. john personna says:

    As I say, if we aren’t going to deport, the argument is moot.  It doesn’t matter one bit.

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  41. Herb says:

    The intent is solely to provide citizenship which, in some 18 years, will be used to ratchet citizenship for parents and extended families who might not otherwise qualify for legal immigrant status.
    Yes, that may be the intent. However, these kids can’t sponsor their parents until the age of 21. And if the parents came in illegally, it’s doubtful they’ll ever attain citizenship anyway. (If they’ve been deported and came back…forget it.)

    Study the system and see how difficult it is for an “anchor baby” to get their parents citizenship. It’s nearly impossible.

    This is pure pandering, which normally I would find merely annoying, but it’s pandering that calls into question not only my citizenship as a natural-born American but also the integrity of the Constitution. How is this even conservative?

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  42. This is pure pandering, which normally I would find merely annoying, but it’s pandering that calls into question not only my citizenship as a natural-born American but also the integrity of the Constitution.  How is this even conservative?

    It’s not.  A truly conservative position would recognize that 1)  the current interpretation of the 14th Amendment is a tried and true institution that has largely worked well for roughly a century and a half and, 2) that there would likely be a myriad of unintended consequences for making a change of this magnitude.

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  43. Pug says:

    This is pure pandering, which normally I would find merely annoying, but it’s pandering that calls into question not only my citizenship as a natural-born American but also the integrity of the Constitution. How is this even conservative?

    It is pandering and it’s not conservative.

    This is what I said earlier.  It fires up the yahoos who will presumably vote Republican and they won’t do a damn thing about it after they are elected.  The big money Republicans won’t allow it.  They simply use the issue as a way to round up votes.

    Admit it, Republicans like illegal aliens in this country because they work hard for low wages and don’t cause trouble on the job.  Just who in the hell do you think hires these folks after they are lured here, illegally, with prospects of a job?  Democrats?  Liberals?

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  44. Steve Metz says:

    “…. Republicans like illegal aliens in this country because they work hard for low wages and don’t cause trouble on the job.” Ridiculous stereotypes always help promote serious political discourse.

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  45. mantis says:

    A big reason for this push to repeal the 14th is, of course, to appeal to the birthers who believe this would somehow invalidate the president’s citizenship.  It ain’t just about immigration.

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  46. Steve Metz says:

    Huh?????  Since “birthers” do not believe Obama was born on U.S. soil, what could this possibly have to do with that nitwit idea?  The reason for the push is that many people believe that crime should not pay.

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  47. rodney dill says:

    A truly conservative position would recognize that   [...]  2) that there would likely be a myriad of unintended consequences for making a change of this magnitude.

    Probably the best reason for not doing anything to the constitution over this.

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  48. Raoul says:

    To those individuals who refer to undocumented immigrants as criminals, illegally entering the country is not a crime, and being in this country illegally (e.g., expired visa) does not render one a criminal. This type of characterization shows more about the individual than about the immigrant (ignorant? bigot?).

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  49. Dave Schuler says:

    illegally entering the country is not a crime, and being in this country illegally (e.g., expired visa) does not render one a criminal.

    This is untrue.  Being in the country illegally, i.e. expired visa, is not a crime.  Entering the country illegally is a misdemeanor.  Entering the country illegally after having been deported is a felony.

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  50. TangoMan says:

    <i> And citizenship is a pretty big reward, indeed, given the lengths to which poor Mexicans will go to get across the border to live in constant fear of deportation. </i>
     
    Not true at all. This trope was rolled out during the last Amnesty attempt. The big reward is to stay in the US legally. The additional benefits that come with citizenship status are mere footnotes in comparison, the right to vote, the right to sit on a jury, the right to qualify for security clearances, etc.
     
    <i>You know what else would dry up if you did that ? Our economy</i>
    Wrong. The economy would rationalize, not dry up. The simple fact is that an economy that has segments which can only function with low wage labor is an economy that is privitizing gains and socializing losses for that economic sector. If a business needs to hire workers for $X per hour and the cost to society of providing infrastructure and social services for that worker is $3X, then that sector of the economy is more of a drag on the nation than it is a productive contributor to the welfare of the nation.
     
    <I>And yes:  there are people who come here to have their children here.  I recognize that.  The problem becomes that if we change the Constitution on this issue, then we are going to have larger problems along the lines of what Europe is experiencing with an unintegrated population of non-citizens.  This is not a good idea and would created far more problems than does the anchor baby phenomenon.</i>

    False dilemma. It’s not simply a choice between “The American Way” and “The European Way.”

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  51. Herb says:

    “The reason for the push is that many people believe that crime should not pay.”

    I call bull. There are already appropriate punishments for illegally crossing the border, up to and including deportation. If you think those punishments are not enough….then make that argument.

    What you’re arguing for, though, is punishing one person for something another person did.

    Beyond that, the only reason to do this is to provide a disincentive for immigrating in the first place. Only problem with that is this……

    The biggest incentive for people illegally immigrating to the US is that the US is awesome and where they’re coming from (Mexico, Honduras, Guatemala, etc) well…sucks.

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  52. Dave Schuler says:

    Cf. 8 U.S.C. § 1325.

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  53. Steve Metz says:

    “…illegally entering the country is not a crime…”

    Crime: an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; especially : a gross violation of law

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  54. mantis says:

    “Since “birthers” do not believe Obama was born on U.S. soil, what could this possibly have to do with that nitwit idea? ”
    A lot of birthers don’t care where he was born, but rather claim that since his father was not a citizen, and his mother was only 17 at the time, that he’s not a citizen.
     

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  55. Raoul says:

    Speeding consists of committing an act that contravenes a public law and the offender is liable for punishment, but speeders are not criminal.  There is a big difference between violating civil statutes and criminal statutes. Not shoveling a sidewalk after a snowstorm is not a crime.  Not complying with certain business laws is not a crime.  Crossing the border is not a crime.

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  56. Raoul says:

    Let’s edify the less bright around here:

    8 USC 1325

    (b) Improper time or place; civil penalties
    Any alien who is apprehended while entering (or attempting to
    enter) the United States at a time or place other than as
    designated by immigration officers shall be subject to a civil
    penalty of –
    (1) at least $50 and not more than $250 for each such entry (or
    attempted entry); or
    (2) twice the amount specified in paragraph (1) in the case of
    an alien who has been previously subject to a civil penalty under
    this subsection.
    Civil penalties under this subsection are in addition to, and not
    in lieu of, any criminal or other civil penalties that may be
    imposed.

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  57. PD Shaw says:

    I think Dave’s correct that immigration issues can be criminal in some contexts, thought it’s been explained to me that it is very difficult to prove these sorts of crimes in most cases.  (Maybe you have to catch them in the act of crossing?)

    The practical reality is that deportation is a civil remedy, which does not require proof beyond a reasonable doubt or all of the protections in the Bill of Rights.  So, unless we want to sentence illegal immigrants to stay in our prisons, receiving free food and healthcare, and maybe even conjugal visits, it’s easiest to treat these as civil matters.

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  58. Anon says:

    Uh, Raoul, note that at the end of the excerpt you give, it explicitly states that the civil penalties are independent of any criminal penalties, and in fact right above the part that you quote, it lists a number of criminal penalties.
     
    All of this, of course, is not very relevant to the question of how the 14th amendment should be applied.

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  59. Anon says:

    Further, dual citizenship weakens the nation-state which I think is a bad thing.

    Do you mean it weakens ones sense of “nation”, or do you mean it weakens the generally accepted (through international law, treaties, etc.) powers of a nation?

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  60. Pug says:

    Ridiculous stereotypes always help promote serious political discourse.

    So tell me, Steve, where the “ridiculous stereotype” is?  Visited a construction site in Texas lately, or a large farm in California?  Or do you not get out much.  If you did, you would see that employers prefer to hire immigrant workers.

    Why is that?  These employers must indulge in the “ridiculous stereotypes” that are beneath Steve’s level of “serious political discourse”.  It is a fact that illegal aliens are hired by Republican business men.  As long as they are, they aren’t going anywhere and hordes more of them are coming.  You might say they are good for Republicans all around.  They work cheap and they fire up the base.

    Now, back to the important hypothetical discussion of whether to deport children or just their parents.  That is “serious political discourse”.

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  61. Raoul says:

    Anon: it is relevant because people are incorrectly branding undocumented immigrants as criminals.  The act of crossing the border is not a crime mind you, so the other commenter stating that it is difficult to prove this is arguing a factual misstatement.  The provision as to crime refers to whether the immigrant is committing crimes apart from the illegal entry.  The part that you refer to above that that I quoted discusses providing false information in getting admitted to the country and has nothing to with with an illegal border crossing.

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  62. Anon says:

    I’m curious about how much effect anchor babies really have, considering that the child must turn 21 before he/she can sponsor a parent. In other words, how many green cards per year are the result of a baby who was born to an illegal immigrant?

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  63. Anon says:

    Raoul, my reading of the text is a bit different.
    <blockquote>(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers officers, or (2) eludes examination or inspection by immigration, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months,</blockquote>
    To me, that says that anyone that enters the country illegally is guilty of something that can be punished by a jail sentence, which means that it is a criminal offense. That part that you mention is number 3, which is providing false information. But number 1 is just sneaking across the border. (Not that I think it should be a criminal offense, just trying to clarify the law on this point.)

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  64. PD Shaw says:

    Raoul:  I don’t if I’m the “other commentor” that made a factual misstatement, but subsection (a) of the Section 1325 makes it a crime to cross the border illegally:

    “a) Improper time or place; avoidance of examination or inspection;
    misrepresentation and concealment of facts
    Any alien who (1) enters or attempts to enter the United States
    at any time or place other than as designated by immigration
    officers, or (2) eludes examination or inspection by immigration
    officers, or (3) attempts to enter or obtains entry to the United
    States by a willfully false or misleading representation or the
    willful concealment of a material fact, shall, for the first
    commission of any such offense, be fined under title 18 or
    imprisoned not more than 6 months, or both, and, for a subsequent
    commission of any such offense, be fined under title 18, or
    imprisoned not more than 2 years, or both.”

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  65. TangoMan says:

    <I>Let’s edify the less bright around here:</i>
     
    Yes, let’s edify the less bright, like you Raoul, who selectively quote legislation in order to advance a lie. I see that PD Shaw and that original fellow, anon, have already caught you in your act of willful misrepresentation by pointing out your selective editing of the law.
     
    Point of fact, illegal aliens are criminals and it’s time that you honestly addressed them as such.

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  66. Steve Metz says:

    is relevant because people are incorrectly branding undocumented immigrants as criminals.  <—— ideological pap.  It is illegal to entry the country without authorization, hence people entering the country without authorization are criminals.  Calling them “undocumented immigrants” is like calling shoplifters “unreceipted shoppers.”  It makes it sound like they just left their documents in their other pants instead of deciding that US law doesn’t apply to them.

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  67. Raoul says:

    I reread the statute and I stand corrected.  AS that other commentator stated- it would require proof of such entry.  Simply branding undocumented immigrants as criminals is simply wrong since they may have entered here legally.  As someone else stated, charging individuals with a crime would require all the criminal procedure rights including right to an attorney- a very expensive proposition.

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  68. TangoMan says:

    <i>As someone else stated, charging individuals with a crime would require all the criminal procedure rights including right to an attorney- a very expensive proposition.</i>
     
    So what? Charging people who beat their spouses to a pulp is also be very expensive proposition.  Charging people with fraud is also a very expensive proposition. You get the picture?
     
    Look, we have two clear examples of changed enforcement environment affecting behavior. After 9/11 there was a mass self-deportation exodus of Pakistani illegals from the US. After the Arizona statute got so much press there was a very noticeable Latino self-deportation process from Arizona.

    When you enforce the law you’re not expecting to apprehend every criminal who entered the nation illegally, you’re actually focusing on the low hanging fruit because the other criminals will self-deport and solve much of the problem for society.

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  69. john personna says:

    Raoul, I’m going to take the simple view that if someone with a badge is hunting me in the desert with guns and dogs, I’m doing something illegal.

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  70.  <blockquote>I see no reason why children of illegal immigrants should automatically have American citizenship and right to stay here</blockquote>

    What about other crimes?  Should the children of murderers and rapists automatically have American citzenship and the right stay here?

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  71. john personna says:

    “What about other crimes?  Should the children of murderers and rapists automatically have American citzenship and the right stay here?”


    Lawbreakers in (or from) what countries?  I certainly think it would be odd to grant citizenship to children of all Salvadorian lawbreakers.

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  72. I mean from the US.  Since we’re now apparently punishing children for crimes committed by their parents, when not strip the citizenship of the children whose American parents commit particularly vicious crimes like murder or rape.

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  73. No federal court has ever ruled that the 14th Amendment conferred citizenship upon infants born to parents inside the country illegally. It is being done despite that fact. So at a minimum, Congressional legislation clarifying what birthright citizenship is, within the context of the 14th Amendment, is not only appropriate, it is long overdue. I would support a Constitutional amendment to that effect. It would not require repealing or modifying the 14th Amendment, however, and could be done by legislation (except that it would then become a political football every time a house changed party).
    What we need is Citizenship by Right of Birth Clarified, whether by law or amendment. I would propose this:

    1. A person shall be a citizen of the United States by right of birth provided that the person is:

    a. born in the United States to parents of whom at least one is, at the time of the birth, both a citizen of the United States and a de jure parent of the newborn, or,

    b. born in the United States to parents who, though not citizens of the United States, are legally in the United States at the time of the birth, and who are de jure parents of the newborn, or, 

    c. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth occurs outside the United States because of United States diplomatic mission or military orders of a parent, or,

    d. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth and identifying information of the newborn are registered within six months from the date of the birth with a United States diplomatic mission to the jurisdiction wherein the birth occurred. 

    2. Persons born in the United States and who do not meet a criterion citizenship by right of birth shall not be deprived of due process of law; nor shall any such persons within the jurisdiction of the United States be denied the equal protection of the laws by the United States nor by any State.

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  74. [...] Some of the other relevant issues, although by no means all, were touched on by James Joyner in an earlier post on this [...]

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  75. So under your law, Donald Sensing, what happens to a newborn who is abandoned at a hospital?

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  76. Christian Miller says:

    I would suggest we break the birthright citizenship problem into separate parts. Forgetting the implementation and magnitude issues, can we all agree that we would not prefer to grant US citizenship to a child born of a woman that is in the US on tourist visa?

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  77. <blockquote>I would suggest we break the birthright citizenship problem into separate parts. Forgetting the implementation and magnitude issues, can we all agree that we would not prefer to grant US citizenship to a child born of a woman that is in the US on tourist visa?</blockquote>
    I certainly can’t agree to that.  Why should that bother me?

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  78. Christian Miller says:

    Stormy Dragon, Perhaps we should step back further in search of some common ground. Do you think that the US should place any limitation on the number people that immigrate to the US?

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