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Saturday, May 29, 2010

Rand Paul and Birthright Citizenship

We have previously posted items on the issue of the birthright citizenship of children of illegal aliens (here and here). Rand Paul, the controversial Republican Senate candidate in Kentucky, has weighed in:

U.S. Senate candidate Rand Paul is stirring it up again, this time by saying he opposes citizenship for children born in the U.S. to parents who are illegal immigrants.

Paul, who a week ago won the GOP primary, told a Russian TV station in a clip circulating on political Web sites Friday that he wants to block citizenship to those children.

"We're the only country I know that allows people to come in illegally, have a baby, and then that baby becomes a citizen," Paul told RT, an English-language station, shortly after his win over GOP establishment candidate Trey Grayson. "And I think that should stop also."

Legislation dubbed the Birthright Citizenship Act was introduced in the House last year seeking to prevent citizenship to babies born to illegal immigrants even though the 14th Amendment to the Constitution guarantees citizenship to everyone born in the U.S. More than 90 lawmakers signed on as co-sponsors.

According to the Congressional Research Service:
The courts apparently have never ruled on the specific issues of whether the native-born child of illegal aliens as opposed to the child of lawfully present aliens may be a U.S. citizen or whether the native-born child of nonimmigrant aliens as opposed to legal resident aliens may be a U.S. citizen. However, Wong Kim Ark specifically held that under the Fourteenth Amendment a child born in the United States to parents who, at the time of his birth, were subjects of the Chinese emperor, but had a “permanent domicil [sic] and residence in the United States” and were not diplomats of the emperor, was born a U.S. citizen. The holding does not make a distinction between illegal and legal presence in the United States, but one could argue that the holding is limited to construing the Fourteenth Amendment in the context of parents who are legal permanent residents. However, the Court’s own discussion of the common law doctrine of jus soli and the Fourteenth Amendment as an affirmation of it indicates that the holding, at the least, would not be limited to permanent legal residents as opposed to nonimmigrant, transient, legal aliens and currently accepted law would also weigh against this argument. Also, the cases involving the deportation of illegal aliens simply take for granted that their U.S.-born children are U.S. citizens in considering whether the existence of or extreme hardship to U.S.-citizen, minor children should stay the deportation of the parents. This is true regardless of whether the children were born during the period of any lawful by the parents, during the period of any unlawful stay or after an I.N.S. finding of deportability of the parents. However, some scholars argue that the Citizenship Clause of the Fourteenth Amendment should not apply to the children of illegal aliens because the problem of illegal aliens did not exist at the time the Fourteenth Amendment was considered in Congress and ratified by the states. Although the Elk decision construed the phrase, “subject to the jurisdiction thereof,” the situation of Native Americans is unique, so any interpretation that the U.S.-born children of illegal aliens are not born “subject to the jurisdiction” of the United States arguably could not rely on the Elk decision.