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

Several state lawmakers want to make 'birthright citizenship' – the guarantee that all children born in the US are citizens – the next front against illegal immigration. It could be a tough battle.

By , Staff writer

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    Rep. Lamar Smith (R) of Texas, seen here on Aug. 10, 2010, has said that birthright citizenship for the children of illegal immigrants 'comes from a misinterpretation of the 14th Amendment.' Several state lawmakers are trying to force Congress to take up the issue.
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As Arizona's controversial illegal immigration law remains stuck in legal limbo, a group of lawmakers from five states has pledged to launch another offensive against illegal immigration that, legal experts say, could run afoul of the Constitution.

Earlier this week, state legislators from Arizona, Georgia, Oklahoma, Pennsylvania, and South Carolina said they were beginning a push to have as many states as possible pass measures that to deny citizenship rights to children born in the United States to illegal immigrants.

Most legal experts agree that the 14th Amendment of the Constitution guarantees citizenship to any person born in the US, regardless of parentage. But these lawmakers seek to follow in the steps of the Arizona immigration law, which ignited a national conversation on illegal immigration even though it could be declared unconstitutional by the courts. Similarly, the lawmakers hope to create a public groundswell against "birthright citizenship," forcing Congress to act.

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“We are here to send a very public message to Congress,” said Pennsylvania state Rep. Daryl Metcalfe (R) at a press conference Tuesday. “We want to bring an end to the illegal-alien invasion that is having such a negative impact on our states.”

Targeting birthright citizenship has clear economic and political appeal – "economic, since every state is facing severe budget shortfalls, [and] political, since birthplace citizenship does not require consent, and therefore does not demand complete, political allegiance to the US," says Catherine Wilson, an immigration specialist at Villanova University in Pennsylvania.

Yet she and others also suggest that birthright citizenship could be a difficult target for conservatives. The 14th Amendment is among the clearest passages of the Constitution, some legal experts say. It is fraught with racial sensitivities, given that it was passed after the Civil War to redress some of the injustices of slavery. And it is, some say, a symbol of the very American exceptionalism that conservatives value.

"Is birthplace citizenship an important and longstanding feature of American exceptionalism, or is it not?” Professor Wilson asks.

The 'anchor baby' debate

Hispanic officials argue that it is. “The Constitution’s statement that anyone born in the US is a citizen is fundamental to our nation,” says Rosalind Gold, senior analyst for the National Association of Latino Elected Officials (NALEO). “It is one of the core principles of US democracy that makes us distinct.”

Birthright citizenship is a foundation stone of America's historic ability to assimilate immigrants and have them become productive members of the economy and society, immigrants-rights groups say.

But critics suggest that America is being overrun. "Having an estimated 340,000 children – roughly the population of St. Louis – born each year to illegal aliens or ‘birth tourists’ calls into question the whole concept of what citizenship really means," says Ira Mehlman, spokesman for the Federation of American Immigration Reform (FAIR), a group which wants to restrict immigration.

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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