Blog #47 November 28, 2014 (Birthright Citizenship)
The failure of our immigration system has captivated much of our
news over the past several years. Our national leaders continue to agree
among themselves that the system is broken but they never have the
courage to take the necessary action to fix the system. This lack of courage
by our political leaders is apparent not only in the immigration problems but
in many other areas as well. There is one underlying problem in our current
immigration law that creates much of the problems today, especially the
economic one. In chapter 24 of my book on the Constitution, A Study of the
Constitution and the Federalists Papers, entitled Children Born to NonCitizen Parents and the Constitution, I discuss this particular situation.
Amendment XIV Section 1 state: “All persons born or naturalized
in the United States, and subject to this jurisdiction thereof, are
citizens of the United States and of the state wherein they reside.”
This pretty well nails down the definition of a citizen of the United States.
But what about the 300,000 to 400,000 children born to illegal immigrants
in the United States every year? Despite the foreign citizenship and illegal
status of the parent, the executive branch of the U.S. government
automatically recognizes these children as U.S. citizens upon birth. The
same is true of children born to tourists and other aliens who are present in
the United States in a legal but temporary status. (Source: Center for
Immigration Studies.) The term “Birthright Citizenship” covers these
children, but as far as I can determine there is no actual Constitutional
authority for this. Legislation has been introduced a number of times to
limit citizenship to newborns in the United States as described in
Amendment XIV. The 14th Amendment history seems to indicate that the
Citizenship Clause was never intended to benefit illegal aliens nor legal
foreign visitors temporarily present in the United States. But here again our
legislative leaders fail to take the proper constitutional action.
Birthright citizenship is a favorite of illegals and those who come to the
United States as tourists to obtain citizenship for themselves through their
children. Now think about this: The U.S. Supreme Court has held that the
U.S. born children of permanent resident aliens are covered by the
Citizenship Clause, but the Court has never decided whether the same rule
applies to the children of aliens whose presence in the United States is
temporary or illegal.
What is the impact on the United States economy of these 300,000 to
400,000 “Birthright Citizen”? Again according to CIS, “The two citizenship
benefits that have drawn the most attention in the birthright
citizenship debate are, first, food assistance and other welfare
benefits to which a family of illegal aliens would not otherwise have
access, and second, the ability of the child when he grows up to
legalize his parents, and also to bring into the United States his
foreign-born spouse and any foreign-born siblings. The sponsored
spouse can, in turn, sponsor her own foreign-born parents and
siblings, and the siblings can, in turn, sponsor their own foreignborn spouses, and so on, generating a virtually never-ending and
always-expanding migration chain.
“Because having a child on U.S. soil can cement an immigrant’s
presence in the United States, provide access to welfare benefits,
and ultimately initiate chain migration of the child’s extended family
and in-laws, children born to illegal aliens and legal temporary
visitors are sometimes referred to as ‘anchor babies.’ These
benefits have contributed to the growth of a “birth tourism”
industry. An "Anchor baby" is a pejorative term for a child born in the
United States to non-citizen parents; the child, an American citizen by jus
soli*, supposedly could later facilitate immigration for relatives who would
not otherwise qualify for permanent residence.
* A rule that the citizenship of a child child is determined by the place
of its birth.
The United States is almost entirely alone in allowing “Birthright
Citizenship.” Only the United States and Canada among advanced
economies automatically grants citizenship in this matter. There are no
European countries that automatically allow this benefit. Many voices in our
nation recognize this immense problem and are pushing for a clarification of
the 14th Amendment. We know one Circuit Court Judge, Richard Posner,
who held in a recent court decision “that the policy of granting
automatic birthright citizenship for children of illegal and temporary
aliens is one that ‘Congress should rethink’ and that the United
States ‘should not be encouraging foreigners to come to the United
States solely to enable them to confer U. S. Citizenship on their
future children” (2003 in Ofoji v. Ashcroft.)
Ken Klukowski, a national-bestselling author, constitutional lawyer and
media contributor states: “if a constitutional conservative Republican
wins the White House, and Republicans control both the House and
Senate, then as part of finally dealing with immigration, Congress
could enact this change. First [there] must be a statute that
effectively secures the border. A second statue should address
citizenship. Then a third could be a statue creating a broad and
generous guest-worker program.”
He goes on to explain: “Congress could specify that children of
illegal aliens are not citizens, or could go more broadly to include
some or all legal temporary residents. It would certainly help
garner conservative votes for follow-up legislation for a broad[er]
guest worker program if federal law specified that any children born
to those guest workers would not be citizens and thus not anchor
babies. “Such a law would provoke a lawsuit from parents of a
child who does not receive citizenship due to the new law. It is not
certain how the Supreme Court would rule on this question today,
especially since it may require overruling Plyle vs Doe (457 U. S.
202, No. 80 – 1538). But there is a good chance it would succeed,
and given how far out of control the border is, many would argue
we must try “ everything possible.“
Of course there are factions that would disagree with denying any child
in the United States the benefits of citizenship. But they, as in many other
areas of Constitutional Law, are not versed in the many problems that come
along with allowing “anchor children.” There is much information on this
issue on the Internet and it would be worth your while to do some research
on this topic. Once you have broadened your knowledge and understand
the problem I would suggest that you implore your representatives in the
Congress to work diligently and introduce legislation to redefine the 14th
Amendment. The three elements of Immigration Reform as outlined above
should have broad nonpartisan support to once and for all be fair to all
persons who have a burning desire to enjoy the benefits and the freedoms
that come with being an American citizen.