Births to Unauthorized Immigrants

From Pew:

About 250,000 babies were born to unauthorized immigrant parents in the United States in 2016, the latest year for which information is available, according to a new Pew Research Center analysis of government data. This represents a 36% decrease from a peak of about 390,000 in 2007. 

...
The number of babies born to unauthorized immigrant parents represented about 6% of the 4.0 million total births in the U.S. in 2016, compared with 9% of all births in 2007.

Birthright citizenship derives from the 14th Amendment to the U.S. Constitution, adopted in 1868, which grants citizenship to anyone born in the U.S. The provision has long been interpreted to apply to U.S.-born children regardless of the immigration status of their parents.

National Identity: Birthplace, Language, Custom and Religion

Bruce Stokes writes at Pew:

Debates over what it means to be a “true” American, Australian, German or other nationality have often highlighted the importance of a person being born in a particular country. But contrary to such rhetoric, a Pew Research Center survey finds that people generally place a relatively low premium on a person’s birthplace. Only 13% of Australians, 21% of Canadians, 32% of Americans and a median of 33% of Europeans believe that it is very important for a person to be born in their country in order to be considered a true national.

There are some exceptions – Hungary (52%), Greece (50%) and Japan (50%) – where about half the public considers birthplace to be very important. But in other nations – Germany (13%), Australia (13%) and Sweden (8%) – very few people make a strong connection between the locale of one’s birth and national identity.

These are the findings from a cross-national poll by Pew Research Center, conducted in 14 countries among 14,514 respondents from April 4 to May 29, 2016.

While many in the countries surveyed are open to those born elsewhere being part of “the nation,” acceptance comes with certain requisites. Majorities in every country surveyed say it is very important to speak the dominant language to be considered truly a national of that land. This includes a median of 77% in Europe and majorities in Japan (70%), the U.S. (70%), Australia (69%) and Canada (59%).

In addition, sharing national customs and traditions is very important to many people’s sense of “who is us.” Just over half the public in Canada (54%) and roughly half the public across Australia (50%) and Europe (a median of 48%) links adoption of local culture to national identity. Somewhat fewer than half of Americans (45%) and Japanese (43%) make that connection.

The survey also asked about the link between religious affiliation and national identity. About a third (32%) of people in the U.S. believe it is very important to be Christian to be considered truly American. This contrasts with 54% of Greeks who say this, but only 7% of Swedes.

Natural-Born Lawmakers

In a discussion of the "natural-born citizen" clause of the Constitution, The New York Times lists 17 members of Congress born outside the United States:

1. INDIA Senator Michael Bennet, Democrat of Colorado
2. ITALY Representative Don Beyer Jr.,Democrat of Virginia
3. CANADA Senator Ted Cruz, Republican of Texas
4. JAPAN Representative Diana DeGette,Democrat of Colorado
5. THAILAND Representative Tammy Duckworth,Democrat of Illinois
6. PERU Representative Jim Himes,Democrat of Connecticut
7. JAPAN Senator Mazie Hirono, Democrat of Hawaii*
8. TAIWAN Representative Ted Lieu, Democrat of California*
9. CANADA Representative Sean Patrick Maloney, Democrat of New York
10. PANAMA Senator John McCain, Republican of Arizona
11. FRANCE Representative Mark Meadows,Republican of North Carolina
12. CUBA Representative Ileana Ros-Lehtinen, Republican of Florida*
13.  GERMANY Representative David Rouzer,Republican of North Carolina
14. MEXICO Representative Raul Ruiz,Democrat of California*
15. CUBA Representative Albio Sires,Democrat of New Jersey*
16. GUATEMALA Representative Norma J. Torres,Democrat of California* 
17. PAKISTAN Representative Chris Van Hollen,Democrat of Maryland

* Denotes citizenship by naturalization.

The six members who were born abroad to non-American parents are clearly ineligible to be president.  (As a previous post noted, the number of immigrants in Congress is at an historically low level.) The debate surrounds the situation of the other 11: born abroad, but to at a least one American parent.

Birthright Citizenship

The Citizenship Clause of the Fourteenth Amendment 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."

Trump wants to do away with birthright citizenship

At NRO, John Yoo writes:

Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

At AEI, Madeline Zavodny writes:

The main cost of birthright citizenship is the potential fiscal burden posed by the U.S.-born children of unauthorized immigrants. Unauthorized immigrants are ineligible for virtually all means-tested transfer programs, with the notable exception of the federal child tax credit if they file taxes. But their U.S.-born children are eligible for welfare benefits if their family meets the criteria. However, such children are believed to be less likely than other children to apply for benefits because their families fear that interacting with the government will lead to the parents’ deportation. Eliminating birthright citizenship for unauthorized immigrants’ children therefore may not save as much money as proponents might believe.

Eliminating birthright citizenship is also unlikely to have a large impact on the number of children born here to people who are not legally present in the U.S. The number of “birth tourists” – people who come to the U.S. for the main purpose of giving birth here – is believed to be only about 8,000 a year. The number of children born each year to unauthorized immigrants who live here is much larger, about 300,000 per year, but the evidence from Germany suggests that unauthorized immigrants might actually have more children here if birthright citizenship were eliminated.

Unauthorized immigrants don’t have children here because those children can receive welfare benefits or because they can sponsor their parents for a green card. (The latter can’t even happen until the child is 21 years old, so that would be some impressive patience.) They have children here because they want them to be Americans. The U.S.-born children of unauthorized immigrants symbolize their parents’ American dreams. They came for the opportunity to work hard and in return have a better life, for themselves and especially for their children.

Coulter, Reagan, and Asian Pacific Americans

Mediaite reports that Ann Coulter attacked Nikki Haley:

Ann Coulter appeared with Kennedy on Fox Business Network tonight and said that there are a lot of people getting the history of that flag wrong, as well as ignoring the Democrats’ history with the Confederacy, the flag, and African-Americans.

At one point, she said, “I’m appalled by––though, I really like to like Nikki Haley since she is a Republican. On the other hand, she is an immigrant and does not understand America’s history.”

Kennedy asked, “Immigrants can’t understand history?” Coulter responded, “Well, she doesn’t!”

Governor Haley was born in Bamburg, South Carolina, which means that she is just as much a natural-born citizen as Ann Coulter.

On May 3, 1988, President Reagan made these remarks on signing the Asian/Pacific American Heritage Week Proclamation 

Our country draws special strength from our rich cultural heritage and the shared values that unite America. Asian-Pacific Americans represent the full breadth of the American experience. For some, their family roots reach deep into American history and the building of this nation. Even before the American Revolution, the first sailors from the Philippines were settled here. Other citizens have only recently come to our shores. They're among our newest Americans—who, like immigrants before them, have a unique appreciation for the freedom and opportunity this country offers.

Citizens of Asian and Pacific heritage have enriched America in irreplaceable ways, but at the same time each person's story is distinctly American, each is a reaffirmation of the kind of country we are and the values that make us strong and free. I think of Wendy Gramm, whose grandfather came from Korea as a contract laborer to cut sugarcane in Hawaii. Wendy's father went on to become vice president of the same sugar company that her grandfather had worked for in the fields. And last February, Wendy was confirmed by the Senate as Chairman of the Commodity Futures Trading Commission, and I can't help but note that one of the commodity futures she now oversees is cane sugar. [Laughter]
...
Americans of Asian and Pacific heritage are one of the most successful groups in this country. What they've achieved is a great reaffirmation of the American values of work, education, family, and community. They've made this country the land of opportunity. They've distinguished themselves in many fields, from science and medicine to agriculture and commerce. They've contributed to our public life through the arts and literature, and also in government. Asian-Pacific Americans are part of the rich tapestry of American life. It's a tribute to the unifying power of America that such a diverse group whose members often have different national heritages, religious faiths, and historical experiences all come together to celebrate this occasion and to reaffirm our common bond as citizens of the United States. Let me give special praise to the Asian Pacific American Heritage Council, whose help brings people together—or, whose work, I should say, helps bring people together, and makes this special week of celebration a reality.

And now it is my Irish-English— [laughter] —privilege to sign the proclamation.

A Citizen Who Cannot Return

The 14th Amendment guarantees that people born in the United States (except for children of diplomats) are automatically citizens.  Proving it to bureaucrats is another matter. The Brownsville Herald reports:

Though she was born in Weslaco in 1982, Brenda Vazquez swore to a Customs and Border Protection officer that she was born in Mexico and is not a U.S. citizen.

Desperate for the end of what she says was hours of intense questioning at a Brownsville international bridge, she signed a statement denying her citizenship.

A petition filed in federal court last week states that Vazquez made the false statement on Feb. 19 after seven hours of intimidation from a Customs and Border Protection officer.

The petition says the officer seized the Texas driver’s license and U.S. birth certificate she pre-sented when returning from a visit to Matamoros.

Customs and Border Protection officials did not respond to repeated requests from The Brownsville Herald for comment for this article.

Vazquez’s petition alleges that the CBP officer repeatedly threatened her and told her she had no right to an attorney until she signed the statement of noncitizenship.

The petition states that Vazquez’s documents were taken from her and that she was forced to return to Mexico.

She remains in Matamoros, unable to cross to the U.S., and has retained an attorney, Jaime Diez of Brownsville, to help her.

Citizenship in the News

At The Wall Street Journal, Laura Sanders discusses taxation and the renunciation of citizenship:

See a striking interactive graph on the sharp rise in the number of Americans renouncing their citizenship.  And another, static, graph:

Via USA Today, The Tennesseean reports on naturalization:

When typical native-born Americans think about immigrants, they think about Latin American farm workers or nannies, said Flavia Jimenez, director of integration policy for the nonprofit National Immigration Forum. They also think naturalization is a simple process.

"That plays into our ineffective policy on immigration," she said. "It doesn't paint a clear picture of who we are as a nation. There are a lot of myths about who the immigrants are, the face of the immigrant community."

The largest number of naturalized citizens in Tennessee came from India in 2010, the most recent year for detailed U.S. Department of Homeland Security data. Mexico was second, and Egypt third. Most were in professional or management careers.

 

And at The New York Times, Professor Jacqueline Stevens questions the whole idea of birthright citizenship:

Why does the practice endure? One could point to how birthright ensures loyalty to those born on the same soil and preserves one’s ties to one’s ancestors. But as Aristotle, explaining how the first families proved themselves to be citizens, said: “As a mortar is made by a mortar-maker, so a citizen is made by a citizen-maker.” In other words, citizens are not sprung from the earth or the womb; nationality is not genetic.

Citizens are created by politicians, the citizen-makers. And they are created because the nation, and hence birthright citizenship, exists to alleviate anxieties about death. Belonging to the nation or any other community by birth, including one’s family, sustains fantasies of immortality, as these groups persist after one’s own life has ended. Birthright citizenship, and indeed, the entire body of laws around families and inheritance, embody societies’ collective flight from death.

Libertarians and economists have long questioned the usefulness of national boundaries. In 1984, The Wall Street Journal’s editorial page proposed adding a constitutional amendment: “There shall be open borders.”

For some on the left, the abolition of birthright citizenship evokes the nightmarish prospect of a labor glut in wealthy countries, the global lowering of wages, and capitalism run amok. But greed and corruption have challenged good governance in all ages, not just in the modern capitalist era. Moreover, too many on the left overlook how inheritance laws perpetuate inequality, as well as the disparity in wealth among countries because of restrictions on migration.

Karl Marx predicted that the demise of feudalism would mean that wealth would be created anew in each generation. Instead, intergenerational transmission of money and property remains the main culprit for inequality in wealth. Abolishing inheritance would help end inequality within countries; abolishing birthright citizenship would help end inequality among countries, by letting people move for greater opportunity.

Citizenship and Civic Engagement

At The Atlantic, Eric Liu offers a thought experiment about citizenship:

As it stands now, those of us who are lucky enough to be citizens by birth don't have to do much. Very little is asked of us. But let's imagine what the content of our citizenship might look like ifeveryone had to earn it.

Service. Under current law, undocumented Americans and nonresident noncitizens can earn citizenship if they enter the armed services - sometimes immediately upon completion of basic training. If service can justify citizenship, then perhaps citizenship should require service, whether military or civilian. National service as a prerequisite to citizenship would make the status more meaningful, and the country more cohesive.

Knowledge. One of the prime reasons for the Voting Rights Act of 1964 was the sordid history of Jim Crow literacy tests used by whites at the ballot box to screen out and intimidate black voters. (Even worse, those tests often required would-be voters to read aloud from the Constitution.) As shameful and discriminatory as those tests were, just imagine now if there were a sincere and universal requirement of civic knowledge in order to vote. Think how few non-immigrants would pass.

Today, public understanding of our past and our system of government is pitifully low: As Justice Sandra Day O'Connor has archly observed, far more Americans can name a judge on American Idol than a justice of the Supreme Court. Only a third can name all three branches of government. One simple remedy would be to update the citizenship test now given to naturalizing immigrants - and administer it to everyone. That would boost knowledge in a hurry.

Net Contribution. In the United Kingdom and a few other countries today, there is a point system for immigrants who want to become citizens, and points are awarded on basis of contribution to society. Why not institute a point system here -- for everyone? Do you give more than five percent of your adjusted gross income to charity? Points. Haven't done volunteer work in the community in a decade? Demerits. Indeed, we could have a scale of progressive contribution: The more wealth you have, the more you should be expected to contribute to the commonwealth - not through taxes only but also through time and deeds.

Periodic Renewal. As those who would end birthright citizenship might note, a date of birth is an arbitrary point at which to assume that someone is worthy of lifetime tenure as a citizen. But then, by this logic, so is the date that a person first earns citizenship. So to keep citizens from coasting, we should change the default setting and make the status revocable and renewable every ten years only by merit. If you don't qualify -- well, it's time to self-deport.

Birthright Citizenship and Diplomats

The Center for Immigration Studies argues that, although US-born children of foreign diplomats do not qualify for birthright citizenship, implementation is uncertain:

• Despite Congress’s clear intent to not create a completely universal and automatic birthright citizenship policy, the current application of the Citizenship Clause is so lax that the United States has a de facto universal birthright citizenship policy that denies U.S. citizenship by birth to no one.
  
  
• There is no federal requirement that hospitals ask new parents if they are foreign diplomatic staff. State agencies do not instruct hospitals to differentiate between children born to diplomatic staff and those born to U.S. citizens or temporary or illegal aliens. Hospitals issue the same birth certificates to all newborns.
  
  
• The Social Security Administration (SSA) does not investigate whether SSN requests are for children of foreign diplomats. Although the agency does recognize that U.S.-born children of foreign diplomats are not eligible to receive SSNs, there is no mechanism in place for preventing such issuance.
  
  
• The State Department is currently rewriting the agency’s guidelines on birthright citizenship, signaling a possibly significant departure from current 14th Amendment jurisprudence. The agency claims that children born to foreign diplomats are “entitled to birth certificates.”
  
  
• Children of diplomats who receive U.S. birth certificates and SSNs have greater rights and protections than the average U.S. citizen because they can enjoy all of the benefits of U.S. citizenship, but also invoke diplomatic immunity if they break a law. A lack of direction from Congress has created what one might consider a “super citizen” who is above the law.
  
  
• In order to end the practice of granting automatic U.S. citizenship to children of foreign diplomats, Congress could author regulations requiring declaration of parental diplomatic status on birth certificate request forms. As an alternative, Congress could require parents to have SSNs before a U.S. birth certificate or SSN is issued to a newborn. While this latter proposal might create better results and be more easily administered, it would have the effect of ending automatic birthright citizenship not just for children of diplomats, but also for children of illegal aliens and temporary aliens — an outcome that is more aligned with the intended scope of the 14th Amendment than the outcome created by current practices.

Citizenship in the News

One of the distinctive features of our text is a chapter devoted exclusively to citizenship. A spate of recent stories suggests that the topic is most timely:

AP reports:

Colorado lawmakers are weighing a Republican proposal that would prevent people from voting if they can't prove they're U.S. citizens.

Supporters and opponents testified Wednesday on the bill that would direct the secretary of state's office to compare voter rolls with state and federal records to determine if registered voters are U.S. citizens. When there is doubt, people would receive a letter asking them to show proof of citizenship within 90 days. They would be ineligible to vote if they don't comply.

Lawmakers will vote on House Bill 1252 Thursday.

Supporters say they bill is necessary to prevent fraud. Opponents say the bill could unduly burden people who are eligible to vote.

Other Republican legislation requiring proof of citizenship to vote has already failed in the Democratic-controlled Senate.

Via the Sacramento Bee, a report from The Philadelphia Inquirer:

"Once a child is born here, the parents make the argument that they should be allowed to stay as that child's guardian. They are using that child as an anchor (to) play on our heartstrings," said Pennsylvania state Rep. Daryl Metcalfe, a Butler County Republican who has built a national reputation as a crusader against what he calls "illegal alien invaders."

Immigrant advocates dismiss his contention as myth, and point to a recent study that found that undocumented immigrants generally "come for work and to join family members." The Washington-based, nonprofit Immigration Policy Center concluded "they do no come specifically to give birth" and game the immigration system.

Such assertions have not tempered the efforts of immigration-control proponents to effectively do away with "birthright citizenship" for the offspring of illegal immigrants.

On the federal level, two Republican senators, David Vitter of Louisiana and Rand Paul of Kentucky, want to accomplish it by amending the Constitution - allowing automatic citizenship only if a child has at least one parent who already is a citizen, a legal permanent resident or an active-duty soldier.

On the state level, Metcalfe, joined by lawmakers from 40 others states, is promoting a package of model legislation under the rubric "National Security Begins At Home." Among those suggested bills: In lieu of automatic citizenship, states would issue distinctly marked birth certificates for the newborns of illegal immigrants, to distinguish them from U.S. citizens.

Pointing out that immigration policy is a federal prerogative, immigrant advocates say that such proposals are beyond the scope of state lawmakers' authority, not to mention unconstitutional

The Manchester (NH) Union-Leader reports:

"BIRTHER" BILL DEAD? A House committee voted 18-0 today to recommend that the full House kill a so-called "birther" amendment that would require candidates to present their birth certificates when filing to run for President in the New Hampshire first-in-the-nation primary.

The original amendment would have forced candidates filing for the 2012 presidential primary, including President Barack Obama, to present proof of being born in the United States, including a birth certificate.

Proponents then tried to make the bill more palatable by moving the effective date back from 60 days after passage to Jan. 1, 2013 to have it take effect after the primary.

That effort came close, but failed on a 10-8 vote, said House Election Law Committee Chairman David Bates, R-Windham, a supporter of the measure.

On a less controversial note, The Boston Herald reports:

With joyful tears and cheers, 200 proud new citizens of the United States took the oath of American citizenship at a John F. Kennedy Presidential Library and Museum ceremony today.

Honorable Judge Richard G. Stearns presided over the ceremony.

In celebration of their new citizenship, the Kennedy Library presented everyone with a commemorative edition of President John F. Kennedy’s inaugural address. A reception sponsored by the Boston Red Sox [team stats] Foundation and Highland Street Foundation was held immediately after.

Views on Birthright Citizenship

In the San Gabriel Valley Tribune, Rep. Gary Miller (R-CA) argues for ending birthright citizenship for the children of illegal aliens:

As originally written, the citizenship clause in the Fourteenth Amendment was intended to guarantee citizenship to all freed slaves. However, a gross misinterpretation of the amendment has created an attractive incentive for illegal immigration.

When observing the debate surrounding the ratification of the amendment, it is clear that the authors intended only to grant citizenship to persons born here who were "subject to the jurisdiction" of the United States. In fact, one of the authors, Senator Jacob Howard, stated that the Fourteenth Amendment would: "not include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

The authors also understood the phrase "subject to the jurisdiction thereof" to have the same meaning as the phrase "and not subject to any foreign Power," included in the Civil Rights Act of 1866. It would be difficult to argue that illegal immigrants and temporary visitors are not subject to a foreign power or that they do not owe allegiance to anybody but the United States.

We must also end birthright citizenship for children of illegal immigrants because it costs American taxpayers billions annually. At present, our national debt is rapidly approaching a record $14 trillion. At the same time, one study found that illegal immigration costs taxpayers up to $113 billion each year and automatic citizenship to the children of illegal immigrants is contributing to this astronomical cost.

In the same paper California Assemblyman Mike Eng (D) argues against the measure, citing the experience of the Chinese in America:

The xenophobic Chinese Exclusion Act of 1882, the only law in U.S. history that explicitly prohibited entry into America on the basis of race and nationality, prevented them from stepping foot into the country. The Act was part of a widespread campaign to drive out predominantly low-wage Chinese immigrant workers, who were accused of driving down wages for "real Americans" and for failing to assimilate.

Consequently, Chinese immigrants ostensibly became the first undocumented immigrant population in the United States. After the passage of the Chinese Exclusion Act, there was just one method by which most could gain entry to the U.S.: by becoming "paper sons" - erasing their real names, family ties and ancestral connections, and adopting false identities claiming to be the overseas offspring of Chinese who were already in the United States.

The current birthright citizenship debate resurrects the malicious spirit of the Chinese Exclusion Act. It is unfortunate that in today's ugly debate around immigration, an immigrant child is not seen as a symbol of hope, but as an "anchor baby," demonized as a way for parents to gain legal status in the United States. The legal reality is that these parents still face deportation, even if they have U.S.-born citizen children. In fact, the Department of Homeland Security has deported more than 100,000 parents of children who are U.S. citizens.

State Proposals on Birthright Citizenship

Julia Preston reports in The New York Times:

Conservative lawmakers from five state legislatures launched a joint campaign on Wednesday to try to cancel automatic United States citizenship for the American-born children of illegal immigrants.

At a news conference here, Republican legislators unveiled two model measures they said would be introduced in at least 14 states. One was a bill clarifying the terms of citizenship in those states to exclude babies born here of illegal immigrant parents. The second was a compact between states to adopt common positions on the issue.

The lawmakers acknowledged that the state bills were not likely to have a practical impact anytime soon, since they would be quickly challenged as unconstitutional. But the legislators — from Arizona, Georgia, Oklahoma, Pennsylvania and South Carolina — said they chose the inaugural day of a new, Republican-controlled House of Representatives to open the first round of litigation they hope will lead to the Supreme Court and also spur action by lawmakers in Washington.

Marc Lacey writes, also in The New York Times:

Most scholars of the Constitution consider the states’ effort to restrict birth certificates patently unconstitutional. “This is political theater, not a serious effort to create a legal test,” said Gabriel J. Chin, a law professor at the University of Arizona whose grandfather immigrated to the United States from China at a time when ethnic Chinese were excluded from the country. “It strikes me as unwise, un-American and unconstitutional.”

The 14th Amendment, adopted in 1868, was a repudiation of the Supreme Court’s 1857 ruling, in Dred Scott v. Sandford, that people of African descent could never be American citizens. The amendment said citizenship applied to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

In 1898, the Supreme Court, in United States v. Wong Kim Ark, interpreted the citizenship provision as applying to a child born in the United States to a Chinese immigrant couple.

Still, some conservatives contend that the issue is unsettled. Kris Kobach, the incoming secretary of state in Kansas and a law professor at the University of Missouri-Kansas City who has helped draft many of the tough immigration regulations across the country, argued that the approach the states were planning would hold up to scrutiny.

There was a disruption:

States and Illegal Immigration: "Federalism in Action"

The New York Times reports:

Legislative leaders in at least half a dozen states say they will propose bills similar to a controversial law to fight illegal immigration that was adopted by Arizona last spring, even though a federal court has suspended central provisions of that statute.

The efforts, led by Republicans, are part of a wave of state measures coming this year aimed at cracking down on illegal immigration.

Legislators have also announced measures to limit access to public colleges and other benefits for illegal immigrants and to punish employers who hire them.

Next week, at least five states plan to begin an unusual coordinated effort to cancel automatic United States citizenship for children born in this country to illegal immigrant parents.

Opponents say that effort would be unconstitutional, arguing that the power to grant citizenship resides with the federal government, not with the states. Still, the chances of passing many of these measures appear better than at any time since 2006, when many states, frustrated with inaction in Washington, began proposing initiatives to curb illegal immigration.

Republicans gained more than 690 seats in state legislatures nationwide in the November midterms, winning their strongest representation at the state level in more than 80 years.

Few people expect movement on immigration issues when Congress reconvenes next week in a divided Washington. Republicans, who will control the House of Representatives, do not support an overhaul of immigration laws that President Obama has promised to continue to push. State lawmakers say it has fallen to them to act.

“The federal government’s failure to enforce our border has functionally turned every state into a border state,” said Randy Terrill, a Republican representative in Oklahoma who has led the drive for anti-illegal immigration laws there. “This is federalism in action,” he said. “The states are stepping in and filling the void left by the federal government.”

See analysis of the Arizona law by the National Conference of State Legislatures.

Hispanic Views of Immigration

The Pew Hispanic Center reports on a new poll.

According to the Pew Hispanic Center, an estimated 340,000 babies were born in the U.S. in 2008 to unauthorized immigrant parents—8% of all babies born that year (Passel and Taylor, 2010). As guaranteed by the 14th Amendment to the U.S. Constitution, all babies born in the U.S., including those born to unauthorized immigrant parents, are automatically granted U.S. citizenship. However, as the debate about immigration reform has intensified in recent years, some prominent elected officials have called for the repeal of birthright citizenship.

The new Pew Hispanic survey asked respondents two questions about birthright citizenship. First, it asked if they knew birthright citizenship is guaranteed by the 14th Amendment. Fully 93% of Latinos say they are aware of this. Among the general public, nearly as many (85%) said the same (Pew Research Center for the People & the Press, 2010).

The survey followed up with a question asking respondents if they wanted the Constitution changed to repeal birthright citizenship. On this question, nearly eight-in-ten (78%) Latinos say they do not want the Constitution changed, more than the share (56%) of all Americans who say the same (Pew Research Center for the People & the Press, 2010a).

Hispanic Americans favor a path to citizenship for undocumented aliens, but there has been substantial change in perceptions of the undocumented population:

Hispanics are divided when asked to assess the effect of illegal or undocumented immigration on Hispanics already living in the United States. Three-in-ten (29%) believe the overall impact of unauthorized immigrants is positive. But similar proportions say that the impact of these immigrants is negative (31%) or that there has been no effect one way or the other (30%). These results contrast sharply with the findings of a similar question asked three years ago (Pew Hispanic Center, 2007).3

At the same time, just 20% of respondents three years ago said the impact of the increasing number of unauthorized immigrants was negative. That is 11 percentage points lower than the share of Latinos who say the same today. Meanwhile, the proportion of Latinos who say unauthorized immigration has no effect increased by 10 percentage points—20% in 2007 versus 30% in 2010. Then, half of all Hispanics (50%) said the growing number of undocumented immigrants had a positive effect on the existing Hispanic community—fully 21 percentage points higher than the proportion who say that in the new survey.

Birthright Citizenship Poll

The Pew Research Center for the People and the Press asked:

As you may know, under the U.S. Constitution, all children born in the U.S. are automatically U.S. citizens, including those born to illegal immigrants. Would you favor changing the Constitution so that parents must be legal residents of the U.S. in order for their newborn child to be a citizen, or should the Constitution be left as it is?

...........................................................Sept 9-12......June16-20...March 2006

Favor changing Constitution...............46....................41................42

Leave Constitution as is.......................49....................56................54

Don't know/refused.............................06...................04................04

Impact of Repealing Birthright Citizenship

The Migration Policy Institute announces results of a new study:

Repeal of birthright citizenship for the U.S.-born children of unauthorized immigrants would expand the unauthorized population by at least 5 million over the next four decades using conservative demographic assumptions, according to a new Migration Policy Institute (MPI) report.

The report, The Demographic Impacts of Repealing Birthright Citizenship, employs standard demographic techniques to assess how passage of the Birthright Citizenship Act of 2009 or changes to the 14th Amendment would affect the size of the unauthorized immigrant population through 2050.

The analysis reveals that passage of the House-introduced Birthright Citizenship Act, which would deny U.S. citizenship to children born to parents who are both unauthorized immigrants, would increase the unauthorized population from its current 10.8 million to 16 million in 2050, assuming a steady-state model.

The Wall Street Journal notes one reaction:

Jon Feere, legal policy analyst at the Center for Immigration Studies, a right-leaning research group that favors more restrictive immigration policies, agreed that "ending automatic birthright citizenship would not automatically end all illegal immigration."

But, Mr. Feere added, "it will put an end to pregnant women traveling to the U.S. specifically for the purpose of giving birth" to get U.S. passports for their children.

Birthright Citizenship and International Perspectives

The Center for Immigration Studies reports:

• Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens.
  
  
• Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to illegal aliens.
  
  
• No European country grants automatic citizenship to children of illegal aliens.
  
  
• The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades.
  
  
• 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.
  
  
• 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.
  
  
• Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.

(A pdf of the full report is here.)

Conservative Debate on Birthright Citizenship, Continued

An earlier post cited Linda Chavez's support for birthright citizenship and John Eastman's critique of her position. She has responded:

The 14th Amendment says in plain English: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” But Eastman and a handful of immigration restrictionists argue that that Amendment excludes children born to illegal immigrants because they are not “subject to the jurisdiction” of the United States.

On its face, that position is absurd and would mean that illegal immigrants—like diplomats—could not be prosecuted for crimes they commit, since they have not subjected themselves to the jurisdiction of the United States. In trying to square this circle, Eastman suggests that the framers of the 14th Amendment had in mind a different interpretation of what it meant to be “subject to the jurisdiction” of the United States than common sense dictates. But his interpretation has been thoroughly refuted by one of the nation’s leading authorities on the history of the 14th Amendment, Professor Garrett Epps. As Epps demonstrates, Eastman misrepresents the Congressional debate on the 14th Amendment and misconstrues the groups excluded from birthright citizenship.

The phrase “and subject to the jurisdiction thereof” was added to the 14thAmendment to exclude two categories of persons: diplomats and Indians.. Since diplomats and Indians were not subject to the laws of the United States, they could not be sued or prosecuted. Diplomats have always enjoyed such immunity, but Indians were a special case because they were members of tribes that enjoyed sovereign status within the United States.

Conservative Debate on Birthright Citizenship

Much of the debate on birthright citizenship is taking place among conservatives. Linda Chavez writes in The Wall Street Journal:

Repealing birthright citizenship is a terrible idea. It will unquestionably jeopardize the electoral future of the GOP by alienating Hispanics—the largest minority and fastest-growing segment of the U.S. population. More importantly, ending birthright citizenship would fundamentally change what it means to be an American.

Proponents of repeal argue that the 14th Amendment was passed after the Civil War to guarantee citizenship to freed slaves, and that it was never intended to grant rights to the offspring of illegal aliens. But this argument is a non sequitur. At the time of the adoption of the amendment, there was no category of "illegal alien" because immigration was unrestricted and unregulated. If you secured passage to the United States, or simply walked across the open border with Mexico or Canada, you could stay permanently as a resident alien or apply to be naturalized after a certain number of years. And if you happened to give birth while still an alien, your child was automatically a citizen—a right dating back to English common law.

She cites the 1898 case of U.S. v. Wong Kim Ark:

The court found that the only persons Congress intended to exclude from birthright citizenship under the 14th Amendment were children born to diplomats—an ancient, universally recognized exception even under common law; Indians, who by treaty were considered members of sovereign nations; and children of an occupying enemy. "The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States," wrote Justice Horace Gray for the majority. To hold otherwise, he noted, would be to deny citizenship to the descendants of English, Irish, Germans and other aliens who had always been considered citizens even if their parents were citizens of other countries. For more than a 100 years, the court has consistently upheld this analysis.

John Eastman replies at The Daily Caller:

Here’s the crux of the dispute. The text of the Fourteenth Amendment’s Citizenship Clause provides that “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.” That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born. In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders. Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction. For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete. Think of it this way. When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.” He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road. He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States. He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

So which of the two understandings of jurisdiction did the drafters and ratifiers of the Citizenship Clause have in mind? Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question. Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.” Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

Latest in the Debate on Birthright Citizenship

Gregory Rodriguez writes in The Los Angeles Times:

Citizenship defined by where one is born, by territory, is not without its imperfections, but it best upholds not only our belief in equality but the need for a cohesive community. In ancient Greece and Rome, only children of citizens received citizenship because that was the most efficient way to maintain social distinctions in a society in which slavery and other forms of status subordination were accepted. (The U.S. confers citizenship on the children of citizens too in some situations, but territory remains important: In some instances, at least one parent has to have lived in the U.S. within a prescribed number of years.)

By contrast, birthright citizenship was established early on under English common law, a legacy of the medieval system of feudalism and reciprocal obligation. A child was deemed worthy of protection of the sovereign in whose territory he was born. In exchange, the child owed the sovereign loyalty. That reminds us that citizenship is not just about rights. It's also about responsibilities.

In the long term, it's in this country's best interest to absorb the children of those who have made their way here, and thereby to establish the reciprocal obligations of citizenship. We all know the adage that owners take better care of their residences than renters. The same applies to full citizens and their nation. The more residents of a national community who feel obligated reciprocally, the stronger the community.

The New York Times "Room for Debate" blog has several entries on the politics of the issue, including one by yours truly.