Illegal immigration: Can states win fight against 'birthright citizenship'?

The lawmakers taking aim at birthright citizenship have produced two model measures that could be introduced in state legislatures. One would create a version of "state citizenship" that would require at least one parent to be a citizen. The other would call for the issuance of a distinctive birth certificate for children whose parents could not demonstrate legal immigration status. The lawmakers said that at least 14 states will consider the measures.

States are struggling to bear the costs of "anchor babies" – the term for children born in the US allegedly to anchor temporary or illegal immigrants in the country – FAIR's Mr. Mehlman says. It is "a legitimate state issue because, as US citizens, these kids are legally entitled to all the benefits the states have to offer – at great expense to those states,” he says.

What does the 14th Amendment say?

The wording of the 14th Amendment suggests that states could have a right to do this, Mehlman adds. The clause states: “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."

Mehlman says: "If the framers had meant that anyone who was simply born on US soil or naturalized here was a citizen, they would not have included the clause 'and subject to the jurisdiction thereof.' "

"What is being sought is a clarification of the letter and the intent of the citizenship clause of the 14th Amendment," he adds.

Legal scholars, however, suggest that the amendment is clear.

This state movement to overthrow birthright citizenship "is clearly unconstitutional,” says Erwin Chemerinsky, dean of the University of California at Irvine Law School. “First, states do not get to decide who is a United States citizen. They never have had this power and never will. Second, Section 1 of the 14th Amendment has been interpreted to make all born in this country citizens. That also makes this clearly unconstitutional.”

Adds Joel Jacobsen, assistant attorney general of New Mexico's criminal appeals division: "It's really about the clearest provision in the whole ... document."

For their part, immigrants-rights groups contest the notion of "anchor babies." It takes 21 years before a child can file for a US visa for its parents, and there's no guarantee that the parents will get one, says Ms. Gold of NALEO.

“It’s too time consuming to be considered a real motive,” she says.

Civil War-era roots

Other rights groups argue that the 14th Amendment's Civil War roots speak to the need for the amendment today. It was enacted in response to laws passed by the former Confederate states that prevented African Americans from entering professions, owning or leasing land, accessing public accommodations, or serving on juries and voting, says Dennis Parker, director of the American Civil Liberties Union Racial Justice Project.

“The fact that legislators are still trying to undermine the citizenship of some Americans shows that the 14th Amendment is clearly as relevant and vital today as it was a hundred years ago," he says.

Even some conservatives suggest birthright citizenship is not the best target in the fight against illegal immigration.

"If we, as conservatives, are to be serious about solving the very real problems inherent in our broken immigration system, then we have to have conservative leaders that are willing to step up and and take an adult approach to solving the problem,” says Robert Gittelson, cofounder of Conservatives for Comprehensive Immigration Reform. “We cannot and should not allow a few fringe elements at the state and local levels of governance to overreach and try to nibble around the edges of what is, by Constitution, a federal problem.”

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