Will the new congress deny birthright citizenship to children of illegal aliens?
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Will the new congress deny birthright citizenship to children of illegal aliens?

October 31, 2010, 12:32 pm
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Supporters of birthright citizenship have reason to worry
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The constitution grants citizenship to anyone born in the US, except children of foreign diplomats.  This has been the case for nearly 150 years.  But in recent years the right to U S citizenship by birth--Jus soli-- has come under attack by those who think that it is being abused by illegal immigrants to gain a foothold to U S citizenship.

Last July Senator Lindsay Graham proposed a change to the 14th Amendment which grants American citizenship by right of birth. He proposes to change the long-standing legal tradition because he believes that as the law now stands, pregnant women, so called “baby tourists” travel to the US to give birth for the sole purpose of acquiring US citizenship for their children.   ‘Birthright citizenship is a mistake’, goes the mantra, ‘people come here to have babies. They come here drop a child and leave. It’s called drop and leave.’ Valid or not this point of view has been gaining momentum. And although for the past 142 years the fundamental principle of birthright citizenship has been one measure of certain U S citizenship, it is now being seriously challenged.  Earlier this month, a group of lawmakers from 15 states launched State Legislators for Legal Immigration, to coordinate efforts to develop legislation to deny birthright citizenship to children of illegal aliens.  A review by Think Progress found, based on past votes that 59 % 0f republican legislators support repeal of birthright citizenship.  Since 1995, there have been 28 bills introduced in congress seeking to end birthright citizenship.   A recent Gallup poll found that immigration is one of the issues on the minds of voters this election cycle, behind  only the economy and terrorism.

Other than Dred Scott, this writer has found just one case in which the claim to U S citizenship by birth has been denied by the US Supreme court, to someone born in the US.   The issue in the Dred Scott case was muddled by the question of slavery and the right of the children of slaves to U S citizenship by virtue of birth.   But that question was settled by the adoption of the 14th Amendment which states:  “All persons born or naturalized in the US and subject to the jurisdiction thereof are citizens of the US and of the state wherein they reside”. In 1898, Wong Kim Ark, born in the US was denied re-entry into the country. The Supreme court ruled that he was entitled to re-enter the country because  he was born in the US, even though his parents were both Chinese nationals.  But those seeking to change the law argue that the Wong Kim case is inapposite because the US had no immigration restriction on alien migration at the time.  At least one Federal judge has said that the 14th Amendment can be changed by statute (see Kleindienst v Mandel, 408 US 753,). Under this view, the words “subject to the jurisdiction of the United States” was meant to include citizens or subjects of foreign states born in the US.  To support their contention,  jus soli opponents point to the case of Elk v Wilkins, in which the Supreme court ruled that Elk, an Indian born on a reservation who later renounced  his allegiance and claimed US citizenship, was not a US citizen by birth under the 14th Amendment. As a member of the Indian tribe, the court reasoned, he owed allegiance to his tribe not to the US, and therefore did not become a citizen of the US by birth. Under this approach, children of parents residing in the US only temporarily or on a student’s or work visa would not become citizens of the US, neither would children of persons who over stay their visas , to say nothing of children of those who were born here as a result of illegal entry by their parents.

Modifying birthright citizenship

State Legislators for Legal Immigration, proposes to change the law so that children of foreign nationals will become citizens only if a parent is a US citizen of legal resident.  Bills have been introduced in congress seeking to make this the law of the land. Representative Nathan Deal, now a candidate for Georgia governor, introduced H.R.698 in 2005, seeking to limit birthright citizenship in just this manner.  Sponsors of the proposed change believe that the current policy of granting US citizenship to children of illegal aliens is an improper application of the 14th Amendment.  In the US senate, Senator Mitch McConnell has said that the 14th Amendment is outdated and should possibly be repealed.  Senator Chambliss of Georgia is on record as saying that the law should be revisited. And senator Jonny Isaacson, also of Georgia, has said he would support legislation to limit birthright citizenship only to individuals whose parents are legally in the country.   The current US policy of birthright citizenship is somewhat unique.  Most EU countries, under pressure from increased immigration have modified birthright citizenship so that not everyone born within their borders become citizens.  In the UK, Australia,and South Africa, for instance, birthright citizenship is no   longer automatic. The same is the case for German and Canadian nationality laws.

The immigration issue has been put on the back burner for now because, as President Obama has said, congress does not have the stomach for such a controversial issue in the face of impending midterm elections.  But Immigration is likely to be one of the issues that the next congress tackles.  A CBS poll earlier this year showed that Americans are divided on the issue of birth- right citizenship, with 47 % favoring a change and 49 % favoring keeping the current law.  One recent study by the Pew Hispanic Center found that there were 340,000 children born in the US in 2008 with parents who were illegal aliens. In total 4.3 million US born children, according to the study, were children of illegal immigrants.  In response to the increasing frustration with illegal immigration, some states have enacted harsh measures aimed at illegal immigrants. Arizona whose anti-immigrant law is now under review by an appellate court,  is in the process of drafting a law that will deny birth certificates to children of illegal immigrants.

While law makers and activists debate removing the economic incentives to illegal immigration, namely jobs, others have turned their attention to birthright citizenship with the avowed purpose of changing it to deny citizenship to children of illegal immigrants and bring US nationality laws in line with those of other countries.   But the proposals to change the 14th Amendment raise nettlesome questions of constitutional law. Those who oppose change say that the law covers all aliens regardless of immigration status and is not subject to change except by an amendment to the constitution itself.   Yet those who support comprehensive  immigration  reform have reason to worry. The expected republican takeover of congress next year could move the issue to the top of the congressional calendar. By last count, according to Think Progress, 130 republican lawmakers support the change.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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