Arizona – already tied up in federal court over its controversial immigration law – has launched another effort regarding illegal immigrants sure to be fought over on constitutional grounds. At issue are what immigration hard-liners call “anchor babies” – children born to illegal immigrants but who automatically are US citizens under the 14th Amendment to the US Constitution.
Arizona lawmakers this week filed legislation requiring citizens of the state to be US citizens, with the added requirement that each person must have at least one parent who was born in the US or is a naturalized citizen. In other words, babies born in the United States to a father and mother who are both illegal immigrants would not be US citizens.
While Arizona is leading the way, other states are expected to follow – perhaps a dozen or so, according to State Legislators for Legal Immigration, a 40-state coalition founded by Pennsylvania state Rep. Daryl Metcalfe (R). The organization wrote the model legislation introduced in Arizona on Thursday.
“According to the Fourteenth Amendment, the primary requirements for US citizenship are dependent on total allegiance to America, not mere physical geography,” Representative Metcalfe said at a meeting of state lawmakers and constitutional scholars in Washington earlier this month. “The purpose of this model legislation is to restore the original intent of the Fourteenth Amendment, which is currently being misapplied and is encouraging illegal aliens to cross and cost American taxpayers $113 billion annually, or nearly $1,117 yearly per individual taxpayer.”
Action in the US Senate
Meanwhile, US Sens. David Vitter (R) of Louisiana and Rand Paul (R) of Kentucky this week introduced a resolution calling for an amendment to the Constitution requiring that a person born in this country to illegal immigrant parents does not automatically gain citizenship unless at least one parent is a legal citizen, a legal immigrant, an active member of the armed forces, or a naturalized legal citizen.
“For too long, our nation has seen an influx of illegal aliens entering our country at an escalating rate, and chain migration is a major contributor to this rapid increase – which is only compounded when the children of illegal aliens born in the US are granted automatic citizenship,” said Senator Vitter.
Based on US Census data, according to the Pew Hispanic Center, some 340,000 children were born to illegal immigrants in the United States in 2008.
“Unauthorized immigrants comprise slightly more than 4 percent of the adult population of the US,” Pew reported last August. “But because they are relatively young and have high birthrates, their children make up a much larger share of both the newborn population (8 percent) and the child population (7 percent of those younger than age 18) in this country.”
“People come here to have babies,” Sen. Lindsey Graham (R) of South Carolina said on Fox News last summer. “They come here to drop a child. It’s called ‘drop and leave.’ To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”
But closing what Vitter and Paul call a “loophole” in the Fourteenth Amendment – what lawmakers in Arizona and other states are trying to force – would not be easy. Amending the US Constitution never is, and immigration is a hard-fought political and social issue involving faith groups as well as a growing Hispanic minority.
Here’s what the 14 Amendment, adopted in 1868 under Reconstruction, says:
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The key phrase here may be “subject to the jurisdiction thereof.” Backers of the proposed restriction in Arizona and elsewhere claim that illegal immigrants are citizens of other countries and therefore not subject to US jurisdiction.
Earlier Supreme Court case
If it made it to the US Supreme Court, it wouldn’t be the first time.
In a 6-to-2 decision in 1898, the high court upheld the citizenship of Wong Kim Ark, born to Chinese parents (who could not become citizens under the Chinese Exclusion Act, subsequently repealed in 1943) in San Francisco.
Democrats in Arizona were quick to criticize the latest move on immigration by their Republican colleagues.
“Instead of focusing on jobs, the economy, and a strong future for Arizona, [the backers of the law] want to get Arizona involved in another losing lawsuit,” state Sen. Kyrsten Sinema said in a statement. “Republicans should try standing up for real immigration reform instead of another political battle that solves nothing and costs money.”