Anti-Immigrant Groups Begin Assault On Birthright Citizenship

Anti-Immigrant groups are beginning their assault on the 14th Amendment, but don't expect it to go anywhere.

As Steven Taylor noted earlier this week, the new year has brought with it a loosely confederated effort to attempt to redefine citizenship under the 14th Amendment to exclude the children of illegal immigrants:

Conservative legislators from five states opened a national campaign on Wednesday to end the automatic granting of American citizenship to children born in the United States of illegal immigrants.

At a news conference here timed to coincide with the start of a new Congress, Republican state lawmakers introduced two model measures curtailing citizenship rights for children of illegal immigrants. The legislators said the measures would be introduced in at least 14 states.

They acknowledged that the state bills were not likely to have a practical effect anytime soon, since they will quickly be challenged as unconstitutional. But the legislators — from Arizona, Georgia, Oklahoma, Pennsylvania and South Carolina — said they chose the first day of a new Republican-controlled House of Representatives to start an effort that they hope will end with a Supreme Court decision on birthright citizenship, and spur legislative action in Washington.

In a separate effort, Representative Steve King of Iowa, a Republican who will be chairman of the House Judiciary subcommittee on immigration, said Wednesday that as soon as the new House members were sworn in, he would introduce a bill to eliminate birthright citizenship for children when both parents were illegal immigrants.

But it was the state lawmakers’ initiative that moved the highly emotional issue of birthright citizenship, which had long been marginal in the immigration debate, to the front of the Republicans’ immigration agenda in the 112th Congress.

“We are here to send a very public message to Congress,” said Daryl Metcalfe, a Republican state representative from Pennsylvania. “We want to bring an end to the illegal alien invasion that is having such a negative impact on our states.”

The effort is multi-pronged and seemingly guaranteed to create controversy and lawsuits:

One model measure the lawmakers presented was a bill creating a new definition of state citizenship, in addition to national citizenship, which would exclude babies born in the state with two illegal immigrant parents.

The second measure was a compact between states, in which they would agree to issue distinctive birth certificates to babies whose parents could not show legal immigration status.

The state bills would also deny citizenship to newborn children of hundreds of thousands of legal immigrants who live in the United States on temporary visas.

The right to United States citizenship for everyone born on American soil is described in the 14th Amendment. The state legislators argued that one phrase in the amendment — which guarantees citizenship to everyone born or naturalized in this country “and subject to the jurisdiction thereof” — signals that it was not intended to apply to children of immigrants who do not have lawful status.

In addition to this effort, and Congressman Steve King’s efforts on Capitol Hill, many states are also looking to get this issue before the courts as soon as possible. On that front, however, the law seems very clear. It starts, of course, with the very first sentence 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 ruled on the meaning of this provision only 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.

On the legal merits, then, it does not appear that this attempt to create two different classes of citizenship could possibly succeed in the long run. Politically, however, there are different motives.  As I noted back in August,  this is really nothing more than cynical pandering on the GOP’s part:

Even if it goes nowhere, which it won’t, they can turn to their base and say See ? We tried to do something but we just couldn’t. It’s also a way for Graham, who doesn’t face re-election in South Carolina until 2014, to send a olive branch to conservatives in South Carolina who have come to think that he’s gone off the reservation over the past several years on issues like immigration.

Cynical ? Perhaps, but that’s politics.

The truth of the matter is that there is going to be immigration reform of some kind soon, whether it comes in a lame duck session after the election or, more likely, after January. It will include increased emphasis on border security, a broadening of the guest worker program (which will be insisted upon by farming interests on both sides of the aisle), and some form of a “path to normalization” for the people that are here illegally who haven’t committed serious criminal offenses. Graham knows it. The rest of the GOP in Congress knows it. They just need to prepare their base for it.

This is about nothing more than the GOP being able to look the anti-immigrant wing of their base in the eyes and say “See, we tried.”

FILED UNDER: Borders and Immigration, Congress, Law and the Courts, US Politics
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Doug, I beg to differ with you on your reference to “anti-immigrant” groups – more correctly they are anti-illegal alien” groups … period.

  2. Bleev K says:

    Richard, are you really that naive?

  3. floyd says:

    The title alone belies your obvious bias, and is a total misrepresentation of the issue
    This is not about emmigration, this is about criminal trespass.

    Of course we could keep the birthright provision for these children and still make it a felony to cross the border illegally for the purpose of producing an anchor baby, with encarceration followed by deportation. The children would then become wards of the court.

  4. mantis says:

    Nice to know floyd and his ilk think the government stealing people’s children is a good immigration policy.

  5. sam says:

    He’ll propose eating them soon, just watch.

  6. DC Loser says:

    You know, certain totalitarian governments considered children to be property of the state. Who needs parents?

  7. Zelsdorf Ragshaft III says:

    It is how you frame the arguement that makes you the lop that you are Doug. Anit-Immigrant groups. You left out one complete word. ILLEGAL. You are living proof, Mataconis, that you cannot fix stupid.

  8. wr says:

    Doug is a lop? Is that a fighting word? Is it a word at all?

  9. Trumwill says:

    I try (with varying success) to avoid using the term “anti-immigrant” out of courtesy (it sidetracks conversation when participants are discourteous), but as long as the tremendous overlap between those that are outraged by illegal immigration and those that want to limit legal immigration (H1B visas and the like) exists, I don’t find it to be a particularly unfair tag.

    If you happen to be one of those people that want border security but don’t feel that we need to do more to limit H1B visas and such, you shouldn’t be called anti-immigration. However, you should also take note of how comparatively few of you there are in the border hawk movement.

  10. Boyd says:

    Speaking for myself (with numerous family members who are immigrants), your usage of the term “anti-immigrant” is infuriating, Doug, and is a million times worse (yes, I measured it precisely) than the idiot Republicans who insist on using the term “Democrat Party” and so forth.

    Of course, nobody said you had to be objective. This makes it obvious that you’re not.

  11. sam says:

    “to start an effort they hope will end with a Supreme Court decision on birthright citizenship, and spur legislative action in Washington.”

    What are the odds that SCOTUS will never grant cert to such a “case”?

  12. wr says:

    What I find even more infuriating, Boyd, is those who refer to “anchor babies.” I prefer the correct phrase for these children — my fellow citizens of the United States. Which is what they are under the constitution the righties keep insist they worship. You may find it insulting that people misstate your beliefs; imagine what it’s like to have your citizenship, and even your personhood, denied.

  13. Boyd says:

    I also find it infuriating, wr, that you claim that people against illegal immigration deny anyone’s personhood. You’re making that up out of whole cloth, or you’re unthinkingly parroting someone else’s baseless claim.

    And denying the citizenship of children born of illegal immigrants is the entire debate here. I’m sure you’d love to wipe the entire debate off the table with your one sweep, but no, you can’t get away with that. The argument is that the children of parents here illegally should not be citizens. If you want to characterize that as being against the children themselves, as opposed to being against what is currently their citizenship status, then once again, you are erecting a strawman instead of dealing with what people are actually saying.

  14. floyd says:

    Mantis;
    Would you exempt bank robbers from prison because they had small children?

    Sam;
    You give “baby back ribs” a whole new meaning….. you pervert! (lol)

    DC Loser;
    I have two adopted grandchildren who were wards of the court until their foster parents adopted them, I was a ward of the court from the time I was orphaned at 12 until emancipation.
    My two granchildren were removed from parental custody for offenses no greater than criminal trespass.
    , None of the three of us is property of the state. At least not any more than the rest of society.

  15. floyd says:

    “What I find even more infuriating, Boyd, is those who refer to “anchor babies.” I prefer the correct phrase for these children — my fellow citizens of the United States. ”
    “”””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””
    Then why not support those children and protect them from being used as “anchor babies” by punishing the criminal behavior of their parents.

  16. floyd says:

    DCLoser;
    Allow me to clarify something. the two grandchildren refered to earlier were adopted by my son and his wife, who were previously their Foster Parents.
    They came out of a system which was punishing criminal behavior on the part of their parents.
    The kids are in good hands.
    The birth parents , like illegal immigrants, were irresponsible toward their children when they chose to break the law.

  17. wr says:

    Boyd — Watch me wipe the whole debate off the table with one sweep:

    These children are American citizens because it says so in the constitution, and no matter how much Republicans may hate darker people, that can’t change the fact that IT’S IN THE CONSTITUTION.

    The are citizens. They are Americans.

    It’s amazing that you hear all these right wingers publicly worshipping our founding document — while hating much of what’s in it.

    Let me say this again, Boyd. There is no debate. They are citizens. Because it’s in the constitution. If you want to amend it to take away rights from those of your fellow citizens who don’t have the same skin color as you, go for it. Maybe Rand Paul will join your crusade.

    And they’re not “anchors.” If you think calling them anchors isn’t dehumanizing them, how about people start calling your kids “garbage brats.” Somehow I think you might object.

  18. Boyd says:

    Pay attention, wr. You seem to have a few problems addressing what I actually say, instead of what you wish I said.

    * I never called the children of illegal immigrants “anchor babies.” I know you wish I had, but I haven’t, and trying to insult my children doesn’t change the facts. Why do you try to change the facts, wr?

    * Why do you impugn my reputation with the implication that I’m racist? I don’t give a rat’s patootie what color illegal immigrants are, they’re still illegal. Again, you’re trying to shift the debate by putting words in my mouth. That’s, at best, disingenuous. Or, as we Texans often refer to such tactics, “lying.”

    * As an aside, I have “by-marriage” relatives who are Mexican, and “blood” relatives who are therefore part Mexican. I love them just the same as those who aren’t Mexican in any way. But of course, this isn’t important to you, because you want to lie about your opponents in the debate.

    * I’ve never denied that the children of illegal immigrants born in our country are, in fact, citizens. I’m stating my opinion that they shouldn’t be.

    * Lastly, my original point in posting was to further call Doug out on characterizing those of us who are opposed to illegal immigration as being opposed to immigration in general. It’s inaccurate, disingenuous and insulting. I normally expect better from OTB authors (well, except for Alex), and felt compelled to respond.

    N.B.: The above parenthetical remark was taking a joking shot at Alex. I don’t really mean it.

  19. Jay Tea says:

    I am fiercely anti-illegal immigrant because I am fiercely pro-immigrant. I have tremendous respect for those who leave their homeland and come to the US, looking to start a new life for themselves and their posterity — and demonstrate their respect for us by following our rules and laws and do it right. I once expressed regret that I was born an American when I heard about a group of new Amerians who had taken their oath of citizenship aboard the USS Constitution (“Old Ironsides”). Immigrants tend to have a greater appreciation for what it means to be an American, because they know exactly what it means to NOT be an American — something I will never fully understand.

    Illegal aliens are spitting in the faces of the legal immigrants, demonstrating their contempt for our laws and our rules, cutting to the front of the line ahead of the above-mentioned legal immigrants, and demanding special attention and privileges. To grant them any concessions is to tell those who are trying their best to follow our laws that they are idiots for trying to play by the rules.

    I would couple stricter, even draconian immigration enforcement with a general easing of immigration rules and laws — but under no circumstances can I support any kind of amnesty. I will not let my new fellow citizens (and would-be fellow citizens, working their way thought the system legally) be insulted and mistreated thus.

    J.

  20. floyd says:

    WR;
    Holster your racism! Must you drag it out everytime you have no argument?
    Used less often and more appropriately, it might even have some impact.

  21. sam says:

    ” I’ve never denied that the children of illegal immigrants born in our country are, in fact, citizens. I’m stating my opinion that they shouldn’t be.”

    Do you think that the benefits gained would be worth monkeying with one of the most important amendments to the constitution? What are we talking about here in numbers? Would messing with the 14th Amendment do anything to solve what you see as a problem? For me, we don’t go amending the constitution (for that’s what would have to happen) unless there is a real, real good reason, especially where it concerns an element of our fundamental political being — our citizenship.

    I’ll be upfront. I don’t see illegal immigrants as some kind of nation-killing problem. I suspect that, on balance, they add a lot more to our economy — if we want to talk economy — than they detract from it. And if some of their kids become American citizens by birth, well that doesn’t strike me as the end of the world. We’ve got worse problems to deal with than a bunch of folks who come here looking for a better life–which is why (except for Native Americans and black folks), our ancestors came here. Folks might cut them a little slack if they reflect on that.

  22. sam says:

    Somebody get Jay a cold compress. His head’s gonna esplode.

  23. An Interested Party says:

    “…but under no circumstances can I support any kind of amnesty.”

    A rather moot point what you and people like you will support, as, inevitably, many illegal immigrants will either be granted amnesty or stay here for a very long time anyway…unless anyone really believes that we will be deporting tens of millions of people anytime soon…

  24. wr says:

    Floyd — Exact;ly what do you mean when you (mis)use the word “racism.” There is simply no dictionary definition that describes what you seem to think it is.

  25. Doug, I beg to differ with you on your reference to “anti-immigrant” groups – more correctly they are anti-illegal alien” groups … period.

    This is like someone from the Brady Campaign saying they’re only against illegal guns, in that it’s true as long as you keep in mind they think all guns out to be illegal.

    When the nativist groups are simultaneously trying to shut down every legal form of immigration, the stressed “illegal” is a distinction in search of a difference.

  26. I have tremendous respect for those who leave their homeland and come to the US, looking to start a new life for themselves and their posterity — and demonstrate their respect for us by following our rules and laws and do it right.

    Then you’re also incredibly misinformed, because the thing you say you admire so much is actually impossible. There are currently only four legal ways to immigrate to the US:

    1. Be an immediate family member of someone who is already a US citizen. Which anti-immigration groups want to eliminate.
    2. Already have a job offer from an employer who’s willing to spend large amounts of money to get you here. Which anti-immigration groups want to eliminate.
    3. When a diversity lottery that you can only enter if you’re considered an under-represented ehtnic group. Which anti-immigration groups want to eliminate.
    4. Have $11 million dollars in assets to invest in the US.

    The idea anyone can just come here because they want to be an American just doesn’t exist anymore. The anti-immigrant groups keep telling us they’re in fine with people as long as they wait in line, BUT THERE IS NO LINE.

  27. Trumwill says:

    Stormy Dragon nails it. Perhaps Jay Tea is some sort of exception who really wants to provide avenues for legal immigration or would be willing to defend the avenues that currently exist against those that want to do away with them. But that makes him no less an exception. By and large, the people who want us to stress “illegal” are the same ones who are critical of the current avenues (such as they are) that legal immigrants also have.

  28. Jay Tea says:

    Stormy, those are our rules. Every nation has the right — and obligation — to set their rules, and I believe ours are among the most open — if not the most open — in the world in providing a path to citizenship. That quota system, as I recall, was set up (or at least championed by) Ted Kennedy in 1964, and I’m not that fond of it. As I said, I’d like to see the system overhauled and revised.

    But that’s the law as it stands. You wanna change it? Propose a change. Just saying “it’s bad” and ignoring it is NOT an acceptable solution.

    And while I can see how some can be anti-immigrant in general, legal or not, I don’t see how anyone can be pro-illegal alien without being anti-legal immigrant. Because it’s telling the legal ones they’re stupid for trying to follow the rules, and making it easier for those who flout them.

    It’s like the DVD industry. Put in a legal DVD, and you are forced to sit through legal warnings and, occasionally, commercials for other DVDs before you can watch what you just paid for. Get an illegal copy, and you can just start watching what you want. Any time it’s simply more convenient and less costly (in non-financial terms) to break the law than to follow the law, you’re going to get people breaking the law.

    J.

  29. MarkedMan says:

    I understand the annoyance of those who feel maligned as anti-immigrant. I might feel more sympathy if anyone in this thread, rather than railing against the despicable criminal illegal immigrants, had also proposed real penalties against those who employ them. Because if say, Arizona wanted to solve their illegal immigrant problem, they could so with heavy fines and jail terms for the farmers, restaurant owners and lawn service owners who hire them. No jobs, virtually no more illegal immigrants.

  30. sam says:

    Eugene Volokh reprints an piece from the Wall Journal by Jim Ho, recently the State Solicitor of Texas, on this topic. Mr. Ho writes:

    A coalition of state legislators, motivated by concerns about illegal immigration, is expected to endorse state-level legislation today at the National Press Club in Washington, D.C., to deny the privileges of U.S citizenship to the U.S.-born children of undocumented persons.

    This effort to rewrite U.S. citizenship law from state to state is unconstitutional — and curious. Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution…

    Opponents of birthright citizenship say that they want nothing more than a chance to relitigate the meaning of the 14th Amendment. But if that is so, state legislation is a poor strategy.

    Determining U.S. citizenship is the unique province of the federal government. 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.

    Many Americans have sincere concerns about the rule of law. But there are many tools available to combat illegal immigration. Surely we can do so without wasting taxpayer funds on a losing court battle, reopening the scars of the Civil War, and offending our Constitution and the rule of law.

  31. Stormy, those are our rules.

    Starting off with a naturalism fallacy. Just because those are the rules says nothing about whether they are good rules or not.

    Every nation has the right — and obligation — to set their rules,

    Nations don’t have rights, they have powers. Only individuals have rights. Including the right of free association. If Person A wants to hire Person B to do some task and the arrangment is agreeable to both, Person C’s opinion on the matter ought to be irrelevant.

    and I believe ours are among the most open — if not the most open — in the world in providing a path to citizenship.

    A path to citizenship != immigration. In particular, the Constitution grants the goverment the power to set rules and processes for the naturalization of citizen. But nowhere does it grant the government the power to limit immigration. If the Tea Party actually believed any of their blithering about keeping the government to their constitutionally enumerated powers, this alone would be enough.

    That quota system, as I recall, was set up (or at least championed by) Ted Kennedy in 1964,

    What a shock, another bad idea from Kennedy. I guess this means that in 30 years, the Republicans will be fighting tooth and nail to save Ted’s health care reform too.

    and I’m not that fond of it. As I said, I’d like to see the system overhauled and revised.

    And yet the nativist groups you support have been the biggest opponent of every last attempt to liberalize the quota system, decrying it as “amnesty”.

  32. John425 says:

    Years ago, the slang word for illegals sneaking across the border was “mujado”, or “wetback”. So defined as a method of checking immediate status by touching the backs of shirts. Wet shirts means they just swam across the Rio Grande.

    What is the word for Mataconis’s leaky boat thinking on this?

  33. Jay Tea says:

    Don’t have time for a full rebuttal, Stormy, but one epic stupid jumped out:

    And yet the nativist groups you support have been the biggest opponent of every last attempt to liberalize the quota system, decrying it as “amnesty”.

    “Amnesty” has a very specific meaning — it means forgiveness for breaking a law. Any immigration reform that includes amnesty is pretty much guaranteed my opposition. A reform that loosens the rules for those who have not yet demonstrated contempt for our laws will probably be fine with me.

    In brief: 10,000 more Mexicans here in the US, either temporarily or with an eye towards staying? Fine. Just let’s send back 10,000 that have already come here illegally, or overstayed their welcome.

    J.

  34. SteveCan says:

    Fixed that headline for you ….

    Anti-Illegal Immigrant Groups Begin Assault On Birthright Citizenship

  35. floyd says:

    ” Watch me wipe the whole debate off the table with one sweep:”
    “”””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””
    WR;
    Are you proposing a “Bounty”? [LOL]

  36. “Amnesty” has a very specific meaning — it means forgiveness for breaking a law.

    Yes, but that’s not how it’s used by Nativist groups. For example when the guest worker visa program was proposed, the usual suspects were all over the place nonsensically calling it amnesty.

    Again you have to keep in mind that most of them want all immigration to be illegal. So from that standpoint any form of legal immigration qualifies as amnesty.

  37. Jay Tea says:

    For example when the guest worker visa program was proposed, the usual suspects were all over the place nonsensically calling it amnesty.

    I don’t recall that debate, but if they were going to extend it to those already here illegally, then it was amnesty. If not, it’s not just stupid, but laughably and pointlessly stupid.

    Again you have to keep in mind that most of them want all immigration to be illegal. So from that standpoint any form of legal immigration qualifies as amnesty.

    I go by what they say. I leave the mind-reading to idiots with delusions of grandeur.

    I will say that I’ve trashed Pat Buchanan and his ilk on numerous occasions. Got no use for them, the birthers, and other various idiots.

    J.

  38. I go by what they say.

    I go by what they do. It’s far to easy to say you believe X while doing the exact opposite. Likewise people can say they support legal immigration, but when they constantly fight to reduce every avenue for people to come here, that’s just obsfucation.

  39. Boyd says:

    Heh. Stormy Dragon is accusing someone of obfuscation. That’s rich.

  40. Julian Alien says:

    As a Native American I can’t believe there is even a debate over these issues.Whites don’t belong here.Blacks or Orientals,and don’t even get me started about the Saudis.I could go on and on like this. You know who you are.Unless you are certain members of Mexican Apaches you don’t belong here either.Now that things are so mucked up that everyone who lives in America is against each other,the bad people will play their part to do what they do best.Bad things.So let’s get together and keep anyone from illegally entering this country.And let’s treat these poor saps from other countries with some dignity while kicking them out,unless they are criminals.I propose we deport those that hire illegals as well.