The New Immigration Debate

Does the Constitution really say that children of illegal immigrants are automatic citizens?

Katrina Trinko
Thursday, January 27, 2011

While 2010’s immigration debate centered on the controversial Arizona law, 2011’s promises to be focused on a different — and even more explosive — topic: birthright citizenship.

Kris Kobach, the recently elected Kansas secretary of state, is a lawyer and professor of law who specializes in immigration issues. The architect of Arizona’s SB-1070, he is the legal mind behind two new proposals to challenge the automatic granting of citizenship to any child born in the United States, regardless of the legal status of his parents. The first proposal is state-level legislation that would not affect the federal citizenship of an illegal immigrant’s child, but would deny him citizenship of that state. The second is a state compact, which has to be adopted by at least two states and approved by Congress to be enacted, that would deny the children of illegal immigrants citizenship at both the state and the federal level.

“They’re two routes to the same destination,” says Kobach. “They attempt to restore the original meaning of the Fourteenth Amendment.”

Not everyone on the right is lauding these initiatives, although there are different grounds for opposition. Mark Krikorian, executive director of the Center for Immigration Studies, is concerned that redefining birthright citizenship before securing the border could lead to “a large, multi-generational population of illegal aliens.” Linda Chavez, chairman of the Center for Equal Opportunity, calls the efforts “a direct assault on the meaning of what it means to be an American.” Alfonso Aguilar, executive director of the Latino Partnership for Conservative Values, says the backers of the legislation are embracing a “constitutional-activist position.”

On the left, there is no interest in — and some horror at — the prospect. In August, Homeland Security Secretary Janet Napolitano called efforts to change the Fourteenth Amendment “just wrong,” a position that reflected President Obama’s, according to White House press secretary Robert Gibbs. In Tuesday’s State of the Union address, Obama urged lawmakers to “take on, once and for all, the issue of illegal immigration.” But the solutions he offered — secure borders, law enforcement, and some version of the DREAM Act – indicate that he continues to think that changing birthright citizenship is an inappropriate solution.

Joining Kobach in the effort is Pennsylvania state representative Daryl Metcalfe, who founded State Legislators for Legal Immigration. Metcalfe reports that lawmakers from 32 states have expressed interest in at least one of the initiatives, although he concedes he has “no idea” how many states will ultimately pass the legislation. Kobach estimates that ten or more states will pass at least one of the initiatives.

If even one state passes the law that denies state citizenship to the children of illegal immigrants, there is likely to be a lawsuit. “Hopefully, it would eventually present the issue to the Supreme Court,” says Kobach, “so that we would have an authoritative statement from the court on whether ‘subject to the jurisdiction thereof’ — whether those words have any meaning or not.”

To Kobach, it is “nonsensical” to understand “subject to the jurisdiction thereof” as meaning anything other than that at least one of the parents must be a citizen of, or at least legally residing in, the United States. Talking about United States v. Wong Kim Ark, the Supreme Court decision in 1898 that many view as having settled that all babies born in the U.S., regardless of parenthood, are citizens, Kobach points out that Wong Kim Ark was the son of Chinese immigrants legally living in this country at the time of his birth.

“There are two very powerful reasons why I think the majority of the Supreme Court would agree with us. And one is that every ounce of evidence of original intent says that our understanding is correct,” says Kobach, remarking that the framers of the Fourteenth Amendment intended that birthright citizenship be given only to children whose parents had no allegiance to a different country.

“The other factor,” he adds, “is that there is a long-standing rule of interpreting the Constitution that says there are no surplus words in the Constitution. And the way the liberals want to read the Fourteenth Amendment, they treat ‘subject to the jurisdiction thereof’ as if they are surplus words meaning nothing.”

Chavez argues that the position that “subject to the jurisdiction thereof” excludes the children of illegal immigrants “is clearly ahistorical and clearly conflicts with not just the historical debate, but consequent Supreme Court decisions.” Chavez compares today’s illegal immigrants to the gypsies present in this country when the Fourteenth Amendment was debated. Gypsies didn’t pay taxes, yet their children were considered citizens by the legislators.

While the state-citizenship legislation is likely to punt the question of birthright citizenship to the courts, Kobach says the state compact “tees up the issue for Congress.” State compacts must be approved by a majority of congressional lawmakers, although presidential approval is not necessary.

The futures of the initiatives are uncertain, but supporters see tackling the issue as crucial. For Metcalfe, ending birthright citizenship for illegal immigrants’ children is as necessary as securing the border. “The fact remains that we still have people within our borders who are here illegally,” he says. “We as a state have to deal with those individuals as far as jobs they’re taking away from our citizens, and the benefits they’re illegally tapping into.”

Roy Beck, executive director of the immigration-restriction group NumbersUSA, also stresses the importance of changing birthright citizenship in the effort to halt or slow illegal immigration. “It is an incentive,” he says. “It’s a moderate incentive for people to come here illegally, and it’s a major incentive for illegal aliens not to go home.”

Advocates also argue that those who view the issue as too controversial are ignoring the global perspective. Almost no advanced countries, with the exception of Canada, treat children born to non-citizen parents within their borders as automatic citizens.

Krikorian thinks that any push to change eligibility for birthright citizenship must be paired with “pro-immigrant elements,” such as increased English-language education and better bureaucratic processing for immigrants. “I think it’s important for immigration skeptics to make clear that they’re not immigrant skeptics,” he says.

Kobach brushes off concerns that the initiatives aren’t politically viable. “There are a lot of politicians and political advisers who think they know what is politically advantageous to say and what is not,” he acknowledges, but he points out that many supposedly knowledgeable political strategists advocated amnesty in 2004 — and then backed off the proposal when it was clear the public didn’t favor it.

But Aguilar is adamant that the initiatives will “antagonize Latino voters.” And that could have a long-term impact. “It’s pretty clear that if we don’t win 30 to 40 percent of the Latino vote in the next election,” he says, “we’re not going to win back the White House.”