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.

Doug Mataconis · · 40 comments

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.”