Ending Birthright Citizenship: (Still) Unconstitutional, Unwise, Unworkable, and Un-American

Written by on April 28, 2015 in Birthright Citizenship with 22 Comments

8569202845_df42504c38_kThe House Judiciary Committee will hold a hearing entitled “Birthright Citizenship: Is It The Right Policy For America?” The hearing will question whether those born in America will automatically be citizens, as they have been for over 150 years. Undoubtedly, the hearing will feature the same counterproductive anti-immigrant rhetoric that nativists have trotted out before, in support of a proposal that would harm America while violating our ideals. Just recently, Rep. Steve King introduced, for the third time, a bill that would end birthright citizenship—leading (among other actions) to the introduction of the “Restrain Steve King from Legislating Act.” It is remarkable that Congress, in 2015, is holding a hearing to consider this.

First, it is doubtful that legislation to repeal birthright citizenship would be constitutional. The Fourteenth Amendment to the U.S. Constitution states 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.” Based on this, the Supreme Court has upheld birthright citizenship for children of foreigners several times—holding that the Fourteenth Amendment means what it says, especially in light of its history.

Moreover, repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth. “Anchor babies,” a term the American Heritage Dictionary calls offensive and disparaging, make no sense given that a child cannot sponsor a parent for citizenship for at least 21 years. And hyperbolic stories about “birth tourism” point to small numbers of foreigners who come to the U.S. legally to give birth to their children.

Further, repealing birthright citizenship would be incredibly unwise and unworkable, affecting everyone—not just immigrants. If birthright citizenship was eliminated, all American parents would have to establish the citizenship of their children, through arduous, expensive, bureaucratic processes. The United States would likely have to create a national “birth registry,” and some sort of national ID to be used as proof of citizenship. Americans could be denied citizenship because of a mistake. It would be ridiculous to impact every single American just to punish a few individuals.

Lastly, repealing birthright citizenship would be un-American. As the Center for American Progress’ Marshall Fitz pointed out today, the “14th Amendment is not just another immigration policy.” “It defines who we are as a nation,” and “categorically rejects the notion that America is a country club led by elites who get to pick and choose who can become members.” And as President Richard Cohen of the Southern Poverty Law Center tells Congress, repealing birthright citizenship “would risk creating a new class of second-class citizens.”

Eliminating birthright citizenship is regrettably, a distraction that moves us away from fixing the real problems with our broken immigration system. Repealing birthright citizenship would increase the size of the undocumented population, not reduce undocumented immigration. For example, a 2010 Migration Policy Institute study found that if citizenship were denied to every child with at least one unauthorized parent, the unauthorized population in the U.S. would reach 24 million by 2050.

The American public wants real solutions, not proposals that look tough on immigrants but are ineffective and harmful. Tomorrow’s hearing will unfortunately provide the latter.

Photo by Gage Skidmore.

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  • James Leonard Park

    Several other countries have ended their practice of giving citizenship based on location of birth. The 14th amendment to the U.S. Constitution was intended to grant citizenship to former slaves. There was no concept of unauthorized immigrant at that time. http://www.tc.umn.edu/~parkx032/CY-B-USA.html

    • Margaret Stock

      Actually, there was indeed a concept of unauthorized immigration at that time. The Constitution had prohibited the importation of slaves in 1808,. and yet traffickers kept smuggling slaves into the US for decades after 1808. The children of those unauthorized migrants were explicitly given citizenship through the Fourteenth Amendment, along with the children of Irish who had evaded the head tax and sneaked into the US through Canada, and other unauthorized immigrants (Gypsies, Chinese).

      • James Leonard Park

        Yes, it is useful to know that the slave trade was officially ended in 1808. The first general laws about immigration were passed in the 1880s, some years AFTER the 14th Amendment. Before that the general immigration policy was OPEN DOOR: If you could get into the USA, you could stay and become a citizen.

    • RetiredINS

      I have read all of the comments and find that none of them understand all of the issues. As a retired INS officer I like birthright citizenship because it is easy to enforce. If you take it away, how do you charge children of illegal immigrants with unlawful entry into the United States?

      Birthright citizenship made America great. Children of Dutch and French immigrants in the 1600s could have the same rights in America as children of British citizens. Mexico is a mess because only those born in Spain had full citizenship rights.

      The Civil Rights Act of 1866 denied citizenship to children of temporary visitors. The 14th Amendment (1868) changed the language to make everyone a citizen except foreign diplomats, visiting royalty, and Native Americans living on a reservation (this was changed in 1924). Those who claim another meaning for the wording of the 14th Amendment don’t know their history.

      The author of this story is correct in every way.

  • pbinCA

    What is the big deal about parents proving their U.S. Citizenship or PLR at the time of the baby’s birth? They can prove it with a drivers license or passport. These credentials are much more secure than they were in the past, and indicate the nationality if not US.

    Why should we have a policy that splits the immigration status of a family up? You can’t convince anyone that the writers of the 14th Amendment intended to split families. In fact, all the debate at the time indicates that the qualifying phrase “and subject to the jurisdiction thereof” was put there to PREVENT giving a baby a different nationality from its parents.

    • Margaret Stock

      FWIW, lots of US immigration policies split up families. This one will split up even more families. See http://www.americanfamiliesunited.org/

      • pbinCA

        I’m taking it as a starting assumption that immigration is orderly under a set of rules decided by each country — not decided by wanna-be immigrants and their lawyers / lobbyists. The weird over-interpretation of the Kim Ark Wong SCOTUS case has caused some 4.5 million adults to become parents of U.S. citizen while themselves being deportable. What policy are you thinking of that causes more than this level of family splitting to occur? There might be some with smaller quantitative effects, but this is the largest one. That’s why immigration reform should fix this broken aspect first.

        Nobody alive now will lose anything they have by changing. What families will gain is cohesion under the immigration law. That’s a positive. And, it will eliminate the temptation to “shortcut” the legal process of immigration.
        That’s fair. The idea of Immigration Reform from 4 years ago was “everybody comes in thru the front door — no more loopholes to jump through”. Yet, I continue to see this principle and basis for agreement undermined, by those who think they benefit in some way from loopholes like birthplace citizenship. Why can’t a foreign family who wants to immigrate permanently just apply as one unit? That makes sense and is fair to everyone. Giving citizenship to a foreign baby, enticing the parents to stick around illegally awaiting another Exec. Order — you think that’s somehow fairer?

        • Margaret Stock

          I doubt you’d get “cohesion” by eliminating the Fourteenth Amendment. But you would get more expense and bureaucracy. Indeed, every baby born in America would need to fill out form N-600 and file it at birth (for $600 per application). You’d get full employment for immigration lawyers, yes. And more bureaucrats. Every American parent would need an immigration lawyer (right now, only the parents who have kids overseas, like Ted Cruz’s mother, need them). As a side note . . . A driver’s license does not prove citizenship, nor does a Social Security number. Most Americans don’t have passports and many can’t get them (those who owe too much child support, to give just one example).

          • Margaret Stock

            I’d find suggestions for reinterpreting the 14th Amendment more credible if they came with a cost-benefit analysis. But they never do. People just claim “it’s easy” without explaining how it would be done as a practical matter. Kind of like the Affordable Care Act.

          • pbinCA

            How about keeping Birth Certificates as a State/Local vital records function, and just adding a line on the Birth Certificate that the parents fill in with their nationality and U.S. immigration status. They sign these claims as truthful. Citizen and PLR parents are done at this point. If a parent defrauds the govt. on the birth certificate, then the U.S. citizenship of their child would never have been established. It’s basically a low-cost “honor system”, where the downside of lying is a defective birth certificate for your kid.

            It’s good to be discussing details and any cost issues. The American people would never sign up for a $600 per child birth tax, so it’s natural that opponents would seize on that as an objection.

          • Margaret Stock

            But again, think about it . . . What do you do 35 years later if the kid is running for President/mayor/school board and now someone points out that mom or dad wasn’t really a citizen when the kid was born? Wouldn’t the change just be toothless if there was no verification? And how would DOS issue a passport to the child if the only basis was an unsupported claim that the parents said they were USCs at the time of the birth? Thousands of parents in Texas have lied about their kids being born in the U.S. I don’t see how this would be any different. The kids are the ones who would be stuck sorting it out.

          • pbinCA

            You’re convincing me that moving to a secure, no-fraud system of personal identification is worth considering. Presidential candidacy isn’t a big problem, as there are few candidates needing to be vetted. But, the millions of babies whose parents might lie to authorities — that is troubling to not detect it immediately. It’s always a challenge to move from an insecure “honor” system to a more rigorous system based on scientific ID technology, and it would cost big money. However, if it were truly secure, it could be used for advanced democracy features like frequent plebescites and other e-Voting.
            Elimination of ID frauds is still hanging over the head of USA.

          • Margaret Stock

            Yes, it would not be “hard” to change the birthright citizenship rule as a practical matter if the U.S. had a national ID card tied to a national birth registry, as many countries do. But we don’t have such a system, and no one seems interested in creating one. And of course, it would cost billions to set one up. Three hundred and twenty one million people would need ID cards.

          • pbinCA

            The N-600 is for adopting a foreign child, maying a foreign spouse or bringing in parents. If the birthplace law is changed, it should establish natural born citizenship as Jus Sanguinis starting with the effective date. That way, no fees are collectable. I mean, you’re right, nobody is going to build a $600 per child birth tax into reform.
            There are ways to implement Citizenship Inheritance without more bureaucracy. How about the parents just sign their nationality and U.S. immigration status on a spot on the birth certificate? That way,
            PLRs and citizen parents are thru with the process with that signature. If there are fraudulent claims made, then the citizenship status of the newborn would never have been established due to the fraudulent assertions.

            Those are good scare tactics….N-600, $600 fee. Thanks for pointing out things to avoid while reforming immigration law.

          • Margaret Stock

            That’s not what the N-600 form is for–it is for figuring out whether a child is a U.S. Citizen, based on the parent’s citizenship. Right now it is only used for children who are born overseas.

          • Alexander Disner

            Nope. also for foreign born citizens. Its called Citizenship by descent.

          • Margaret Stock

            So you’d just take people’s word for it, that they are US citizens? That worked really well with motor voter.

  • Joanne Roll

    This is another attack on the 14th amendment. That amendment is the cornerstone of all civil rights in the last 150 years. The Republicans have a strategy to overturn Roe and return the issue of abortion to the states. That means that individual states would have the right to define “who is a person.” Secondly, the Republicans are attacking public accommodation laws, secured by the 14th amendment, so that private property owners would have the right to discriminate, citing the “freedom of religion” laws. Finally, the Republicans brought the suit to the Supreme Court and the Court eliminated some key parts of the Federal Voting Rights Act. The Democrats have neither interest nor strategy to combat this. The successes of the Republicans in 2010 and 2014 were the initial step in this strategy.

  • jesiA

    This is ridiculous, an un-American attack on the 14th amendment. The lengths this “policymakers” will go just for their hate towards immigrants. If this were to pass, I could see it being a complete mess, we already have a broken immigration system, imagine if we would leave it to so many incompetent adjudicators to decide if a person is a US citizen.

  • Barry wills
  • victor mendoza

    The U.S Constitution was created to ensure the basic rights
    for its citizens. Each amendment was created with the thought of future
    generations. But it seems that politicians, who were voted in because of their
    strong beliefs in our government and fundamental laws, pick and choose which
    amendments benefit the beliefs of the party they are in. The 14th amendment seems to be the
    focus this time around. However, an attempt to end birthright citizenship is
    not only unconstitutional but wrong altogether. There has to be a better way to
    reform the immigration issues currently plaguing the country. Ending birthright
    citizenship would separate families, adding to other major problems in the
    country. This plan will undoubtedly bring extra cost to the country. These cost
    may include things like funding for a new department to manage citizenship as
    well as current cost for managing immigration issues. The number of children born in America
    illegally will not decrease with this change, as the desire to come to America
    will not diminish. America has dealt with HUGE challenges and issues over its
    history without having to change what it was created on, its Constitution, so
    why is immigration reform stumping our current leaders? We need to make our
    leaders uphold the constitution, the founding principles of our country.

  • AmericanLegals

    Ending birthright citizenship deserves a lot of careful consideration. Yes, it will increase our illegal immigration population AND then ALL of the illegal parents and children should be asked to voluntarily leave the country and apply for citizenship, learn English, pay penalties for breaking the law and get in line with the people that come here legally and approved by quotas. There is no justification for entering a country illegally, having babies that gain citizenship and accommodating the illegal parents that brought them here.