Donald Trump has released details of his immigration reform plan, which includes no longer allowing children born to illegal immigrant parents to automatically become U.S. citizens. Ending birthright citizenship, which Trump says is the “biggest magnet for illegal immigration,” isn’t so crazy and is an issue already before the U.S. Congress.
In January of this year, Rep. Steve King (R-Iowa) proposed the Birthright Citizenship Act of 2015 (HR 140) that seeks to amend current law by making requirements for citizenship more narrow, and, in King’s opinion, more constitutional.
“A Century ago it didn’t matter very much that a practice began that has now grown into a birthright citizenship, an anchor baby agenda,” King said. “When they started granting automatic citizenship on all babies born in the United States they missed the clause in the 14th Amendment that says, ‘And subject to the jurisdiction thereof.’ So once the practice began, it grew out of proportion and today between 340,000 and 750,000 babies are born in America each year that get automatic citizenship even though both parents are illegal immigrants. That has got to stop.”
Understanding The Fourteenth Amendment
The Fourteenth Amendment to the U.S. Constitution states that “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 where they reside.” King wants to re-establish focus on “subject to the jurisdiction thereof.”
King’s bill seeks to amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. The bill states that a person born in the United States is a citizen if one parent is “(1) a citizen or national of the United States, (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien performing active service in the armed forces.”
The Subcommittee on Immigration and Border Security held a hearing in April on whether birthright citizenship is the right policy for America in response to King’s bill, which remains in committee.
John Eastman of the Claremont Institute testified before the subcommittee, saying, the Supreme Court has never actually held that anyone who happens to make it to U.S. soil can unilaterally bestow citizenship on their children merely by giving birth here.
Although such an understanding of the Fourteenth Amendment has become widespread in recent years, it is not the understanding of those who drafted the Fourteenth Amendment, or of those who ratified it, or of the leading constitutional commentators of the time. Neither was it the understanding of the Supreme Court when the Court first considered the matter in 1872, or when it considered the matter a second time a decade later in 1884, or even when it considered the matter a third time fifteen years after that in the decision many erroneously view as interpreting the Fourteenth Amendment to mandate automatic citizenship for anyone and everyone born on U.S. soil, whether their parents were here permanently or only temporarily, legally or illegally, or might even be here as enemy combatants seeking to commit acts of terrorism against the United States and its citizens.
Eastman argues that the modern view of the Fourteenth Amendment ignores a key phrase in the Citizenship Clause. Mere birth on U.S. soil just isn’t enough. “A person must be both ‘born or naturalized in the United States’ and ‘subject to its jurisdiction.’”
Historically, the language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided in the 1866 Act.
After citing various cases that seem to allow birthright citizenship and showing that they, indeed, do not, Eastman says, “This is not to say that Congress could not, pursuant to its naturalization power, choose to grant citizenship to the children of foreign nationals. But thus far it has not done so. Instead, the language of the current naturalization statute simply tracks the minimum constitutional guarantee—anyone born in the United States, and subject to its jurisdiction, is a citizen.”
Lino Graglia of the University of Texas at Austin School of Law, who also testified at the hearing, agrees: “It is difficult to imagine a more irrational and self-defeating legal system than one that makes unauthorized entry to this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry a grant of American Citizenship. How can such a legal system have come to be and be permitted to continue? The answer, its defenders will tell you, is the Constitution. Justice Robert Jackson’s famous reply to this argument was that the Constitution is not a ‘suicide pact.’”
Birthright Citizenship By The Numbers
Every year, 1 out of 10 births in the United States is now to a mother who is an illegal immigrant.
“Despite the illegal status of the parent, the Executive Branch automatically recognizes these children as U.S. citizens upon birth,” said Jon Feere of the Center for Immigration Studies. “The population of U.S.-born children with illegal alien parents has expanded rapidly in recent years from 2.7 million in 2003 to 4.5 million by 2010.”
Only 30 of the world’s 194 countries grant automatic citizenship, but in advanced economies, Canada and the U.S. are the only countries that grant automatic citizenship to children born to illegal immigrants. No European country has such a policy.
“The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades,” Feere says. The main reason is increased illegal immigration. “If the United States were to stop granting automatic citizenship to children of illegal immigrants, it would be following an international trend.”
Richard Cohen of Southern Poverty Law Center, however, isn’t interested in following international trends and says that “the Fourteenth Amendment was intended to put the issue of birthright citizenship beyond the reach of congressional legislation.” The only way to change it would be by a constitutional amendment.
Cohen argues that shouldn’t happen because these children should be protected and not fall prey to a “backlash to our nation’s changing demographics.”
“The sanctity of the birthright citizenship should not be disturbed,” Cohen says. “Any other course would risk creating a new class of second-class citizens.”
What Voters Think
Voters, however, are more opposed than ever to granting automatic U.S. citizenship to children born to illegal immigrants. According to Rasmussen, nearly two-out-of-three likely U.S. voters (65 percent) say if a woman enters the U.S. as an illegal immigrant and gives birth to a child here, that child should not automatically become a citizen. This number is up from 58 percent in 2010.
When it comes to children born of illegal immigrants, there is a divide between the political class and mainstream voters. Forty-six percent of those in the political class want to grant automatic citizenship, while 73 percent of everyday Americans oppose such a policy.
Liberals are more likely to support the citizenship rights of children born to illegal immigrants (61 percent in favor) while 83 percent of conservatives and 71 percent moderates are opposed, reflecting the sentiments of Sen. Harry Reid, who said in 1993 that giving automatic citizenship to the children of illegal immigrants is insane. He made the following statement after introducing a bill to end the birthright citizenship loophole, which was more extreme than that proposed by King and Rep. David Vitter (R-LA) in the Senate (S.45):
“If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides – and that’s a lot of services.”
Of course, now Reid is against ending birthright citizenship, calling it “stupid.” Daniel Horowitz said Reid’s shift, “illustrates just how extreme the Democratic Party has become. Before radical special interests and the desire for a permanent voting bloc took over the party, many Democrats believed in the bedrock principles of sovereignty, rule of law, and ordered immigration.”
Trump’s plan might be rubbing some people the wrong way, but at least on this point—stopping birthright citizenship—he just might have it right. The proposal is certainly not out of the mainstream. It’s not insane. It’s not stupid. It’s about principles of sovereignty, rule of law, and ordered immigration.
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