Some Republicans in Congress are questioning the 100-year-old policy giving citizenship to those born in the U.S. to undocumented parents
(Bloomberg) — For more than a century, the rules governing U.S. citizenship have included a straightforward test: With rare exception, a person born within the country's borders is an American citizen.
That tenet is now under attack as part of the fight over illegal immigration. What had been a simmering academic debate has moved in recent weeks into the political arena, with Republicans in Congress questioning whether the children of illegal aliens should be afforded citizenship and state lawmakers preparing to force the issue into the courts.
"You can't break into somebody's country and think you have the right to citizenship because you were born here," said Russell Pearce, an Arizona Republican state senator who is joining counterparts in other states to urge legislation to end so-called birthright citizenship for the children of illegal immigrants.
At stake are what supporters of current law say are some of the country's defining principles: an openness to change and the equality of all people born within its borders. Amending the law would make lineage matter in the U.S. as never before, said Walter Dellinger, a Washington lawyer who as a Clinton administration official testified in support of birthright citizenship in 1995.
"Unlike countries known for their Frenchness or Germanness, for example, we are a country that from the beginning has changed every year," said Dellinger, a Washington lawyer with O'Melveny & Myers LLP. With birthright citizenship, "whatever the questions about one's parents or past generations, every new generation born here comes with a clean slate."
The U.S. is among only 30 nations, out of 194, that grant automatic birthright citizenship, according to the Center for Immigration Studies, a Washington-based group that seeks tighter controls.
Republicans and Democrats alike have criticized the policy over the years. Democrat Harry Reid of Nevada, now the Senate majority leader, proposed ending birthright citizenship in 1993. He later changed his stance, calling that bill "the biggest mistake I ever made."
Two years later, Dellinger helped the Clinton administration stop similar, Republican-sponsored proposals. "I thought after this was rather quickly beaten back in 1995 that we would never see it again," Dellinger said.
Instead, the issue is back, again pressed by Republicans. Senator Lindsey Graham of South Carolina has said he will propose a constitutional amendment to change the rules, and Senator Jon Kyl of Arizona said he wants hearings.
"People come here to have babies," Graham said in July on Fox News. "They come here to drop a child. It's called 'drop and leave.'"
The debate is being fueled by an increase in the number of U.S.-born children of illegal immigrants. A Pew Hispanic Center study of Census Bureau data found that as many as 340,000 of the 4.3 million babies born in the U.S. in 2008 had at least one illegal immigrant parent. Some opponents have dubbed those children "anchor babies" because of concern that as adults they might help their parents gain citizenship.
The central legal question involves a constitutional amendment. The Constitution's 14th Amendment, enacted in the aftermath of the Civil War to protect the rights of newly freed slaves, confers citizenship on anyone born in the U.S. and "subject to the jurisdiction thereof."
Supreme Court Ruling
The Supreme Court in 1898 said those words excluded only the children of American Indians, diplomats and invading armies. The ruling, which invoked the "ancient and fundamental rule of citizenship by birth within the territory," affirmed the rights of the son of Chinese parents who were legal permanent residents in California.
The high court returned to the subject in passing in a 1982 ruling that required school districts to enroll illegal aliens. In a footnote to the court's opinion, Justice William Brennan wrote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
In neither case did the justices directly confront the question of citizenship for the children of unauthorized aliens, said Peter Schuck, a constitutional law professor at Yale Law School. The court's statements on the subject were what lawyers call "dicta" — reasoning that wasn't necessary for the resolution of the case.
"The traditional understanding has never been adjudicated by the court, never been confirmed by the court," Schuck said. Schuck and Rogers M. Smith, now a political science professor at the University of Pennsylvania, proposed a different interpretation of the 14th Amendment in a 1985 book.
They argued that the framers of the provision intended for citizenship to embody a notion of mutual consent, requiring the individual to renounce any foreign allegiance and the government to accept the person as a citizen.
Among the critics of birthright citizenship is Richard Posner, an influential federal appeals court judge in Chicago who wrote in 2003 that Congress can deny citizenship to the U.S.-born children of illegal aliens.
"The exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the 14th Amendment literally," Posner wrote.
Dred Scott Case
Dellinger said that interpretation can't be squared with either the 14th Amendment's wording or the intent of the authors. The provision was crafted in response to the Supreme Court's Dred Scott decision, which said that people of African descent weren't citizens even if they were born in the U.S.
The 14th Amendment "was quite emphatically meant to be everyone born here," Dellinger said. "You don't lightly overturn 140 years of settled understanding."
Efforts at the state level to change the law would face even greater obstacles, given that the 14th Amendment was designed to limit state power, said Gerald L. Neuman, a professor at Harvard Law School.
"No one wanted the southern states after the Civil War to have the power to deny state citizenship to the freedmen," Neuman said. "That was the whole point."