Wrongful Birthright

“Anchor babies,” the 14th Amendment and how GOP nominees aim to end the abuses

by Brendan Kirby | Updated 19 Aug 2015 at 2:43 PM

Led by Donald Trump, several Republicans who are running for president have begun to call for the end of “birthright citizenship,” the notion that virtually anybody born on U.S. soil automatically becomes an American citizen.

Birthright citizenship attracts thousands of foreigners to the United States every year to have “anchor babies,” whose automatic citizenship tethers the whole family to the greatest nation on earth.

GOP candidates Gov. Bobby Jindal of Louisiana, Sen. Rand Paul of Kentucky, former Sen. Rick Santorum of Pennsylvania, Sen. Lindsey Graham of South Carolina and Gov. Chris Christie of New Jersey have staked out similar positions to Trump. Wisconsin Gov. Scott Walker told NBC News he would address the birthright citizenship problem by fixing the “root problems” of illegal immigration.

But Jeb Bush proclaimed to CBS News Tuesday that birthright citizenship is “a Constitutional right,” saying: “Mr. Trump can say that he’s for this because people are frustrated that it’s abused. But we ought to fix the problem rather than take away rights that are constitutionally in doubt.” Similarly, Sen. Marco Rubio said that while he is “open” to addressing the issue in some manner, birthright citizenship is a Constitutional right that should not be changed.

The term “anchor babies” is decried as insulting. But to many Americans, this gaming of the system, and the refusal by politicians to do anything about it, are insulting.

A 2011 Rasmussen poll, cited by Trump, suggests that 65 percent of likely voters don’t support birthright citizenship.

To point to one example of the abuse that is happening, Chinese women flock to the U.S. to give birth through organized networks that serve as de facto travel agents for “birth tourism.” At least 10,000 such Chinese babies were born in the United States in 2012, according to Time.

It may be a surprise to you that birthright citizenship is rare around the world. The only two advanced nations that allow it are the United States and Canada. Most of the 30 or so others that permit it are less developed nations in the Western Hemisphere.

No European nation allows it.

Even Senate Minority Leader Harry Reid back in 1993 asserted that "no sane country" would have such a policy.

Even Senate Minority Leader Harry Reid back in 1993 asserted that "no sane country" would have such a policy.

"If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right?" said Reid, of Nevada. "Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee full access to all public and social services this society provides — and that’s a lot of services."

But legislation that could end the practice has languished in Congress for years and always runs into an argument that changing things would require the heavy lift of amending the 14th Amendment to the Constitution.

Well, not so fast.

The issue hinges on the meaning of the words “subject to the jurisdiction” of the United States in the 14th Amendment, which was ratified in 1868 to grant full rights to former slaves.

“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,” the amendment reads.

Typical of the common Washington "wisdom" on the topic is that from Senate Minority Whip Richard Durbin, D-Ill., who has depicted the issue as an open-and-shut case of constitutional law.

“I hope my colleagues, whatever their feelings on this issue, will understand: You cannot amend the Constitution by a statute,” he said earlier this year. “I thought that was in basic Senate 101.”

The U.S. Supreme Court never has made clear whether birthright citizenship applies to the children of illegal immigrants.

But a growing number of scholars over the past decade have challenged that interpretation. They point to the fact that the U.S. Supreme Court never has made clear whether birthright citizenship applies to the children of illegal immigrants.

“The short answer is, we don’t know,” said Steven Camarota, director of research for the Washington-based Center for Immigration Studies. “There’s never been legislation conferring that status on the children of illegal immigrants. There’s never been an executive order applying to the children of illegal immigrants.

"There’s no conscious policy. It just runs on autopilot,” he added.

Supporters of birthright citizenship routinely point to United States v. Wong Kim Ark, an 1898 Supreme Court decision ordering the government to recognize the citizenship of a man who had been born in San Francisco to Chinese immigrants.

The federal government, enforcing a law restricting Chinese immigration, had denied Wong Kim Ark re-entry after a trip abroad.

But Richard Posner, a judge on the 7th U.S. Circuit Court of Appeals in Chicago, has argued the Ark case involved legal immigrants and does not apply to people who enter the United States without permission. Writing separately in a case involving an asylum issue in 2003, Posner invited Congress to tackle the provision, which “makes no sense,” he wrote.

“We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children,” he wrote.

“A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it,” he added.

Posner argued that the 14th Amendment was meant to grant citizenship to freed slaves.

“Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense,” he wrote.

The issue has gained new momentum because of Donald Trump's presidential candidacy. The real estate tycoon has ridden a get-tough-on-immigration stance to the top of the GOP polls. Ending birthright citizenship was one of the planks of a detailed position paper his campaign released over the weekend.

“This remains the biggest magnet for illegal immigration,” the paper states.

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