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Redefining birthright citizenship, one state at a time


A child waves a flag during an immigration reform rally in Los Angeles. (Chris Lee/ZUMAPress)

In the best-case scenario, Texas state Rep. Leo Berman hopes his state will be sued. The representative for Texas’ 6th District, along with more than a dozen other Republican state legislators across the country, plans to introduce a bill in the next session calling for his state to discontinue automatic citizenship for U.S.-born children of illegal immigrants. Instead of a birth certificate, children born to parents illegally in the country would be issued a document they could take to the consulate of their parents’ legal country — and would not be granted the right to stay in the United States.

[Immigration1] The measure is, of course, a direct violation of the 14th Amendment, which grants citizenship to anyone born in the United States. According to Berman, that’s precisely the point.

“If that bill passes, we will be sued immediately. That’s the purpose of the bill,” he said. “The ACLU, La Raza, the Justice Department — someone will sue us for the bill.”

The next step in his desired outcome is a legal victory. “That lawsuit will go all the way to the U.S. Supreme Court, where some judge is going to read the background and say there are no Supreme Court rulings affirming the 14th Amendment’s current interpretation,” he said.

That is the central argument of an effort launched Tuesday by lawmakers from around the country to redefine how states give out birth certificates and, more importantly, to whom they are given. The charge is being led by States Legislators for Legal Immigration, a national coalition of pro-enforcement, anti-illegal immigration lawmakers in 41 states. Republican immigration hawks like Pennsylvania state Rep. Daryl Metcalfe, the group’s founder, and Arizona state Rep. Russell Pearce, who wrote Arizona’s controversial SB 1070 immigration law, are pushing lawmakers in the group to join the 14th Amendment Citizens Model Committee and draft bills against citizenship for children born to illegal immigrants.

If they succeed, the lawmakers hope to see the 14th Amendment interpreted in a wildly different fashion, with citizenship only provided to children of those in the country legally.

Most legal scholars say it can’t be done, especially not at the state level. The 14th Amendment was established in 1868 to overrule the Dred Scott decision that prevented children of slaves from becoming citizens. The language of the amendment specifically refers to birthright citizenship: “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.”

But some state lawmakers argue the 14th Amendment has been misinterpreted to include the children of illegal immigrants, who they say should be citizens of their parents’ native countries instead of the United States. They claim that the amendment serves as a magnet to draw illegal immigrants to the United States — that babies are used as “anchors” so undocumented immigrants can receive benefits for their children and eventually earn legal status themselves.

“If an American citizen were to do the things to a baby that these people do to have ‘anchor baby’ status, you would probably be charged with child abuse,” Metcalfe said at a press conference in support of the State Legislators for Legal Immigration effort Tuesday. “They’re really exploiting these children. We do not let Americans who live the life of a criminal keep their children.”

There is little evidence to support claims that this happens on a large scale — most economists attribute immigration levels to employment opportunities, not hope of citizenship — and immigrant rights advocates consider the term “anchor babies” hate speech meant to make children of illegal immigrants sound less human. Even if undocumented immigrants do have children in the United States for the purpose of obtaining citizenship, they won’t have an easy time getting it: Citizens cannot petition for their family members to come to the country until they are at least 21, and even then, those who have crossed the border illegally cannot obtain legal status through a family member.

Still, a large number of children are born in the country to illegal immigrants each year. The Pew Hispanic Center found in August that babies born to undocumented immigrants made up 8 percent of the total births in the United States in 2008.

This can create problems for society, according to some lawmakers. “If we’re allowing these two cultures to compete within our society, we are sowing the seeds for our own failure,” Pennsylvania state Rep. Tom Creighton (R) said at the press conference Tuesday.

Sixteen state legislators have already indicated they plan to support the state legislation, and Metcalfe said he expects more members of the State Legislators for Legal Immigration to join the effort. They will meet in December during an American Legislative Exchange Council conference to draft legislation that members can later introduce in their states.

Metcalfe said the lawmakers would receive help in crafting the legislation from Immigration Reform Law Institute, the legislative arm of the pro-enforcement Federation for American Immigration Reform. Ira Mehlman, a spokesman for FAIR, said the organization only helps legislators that seek it out for aid in crafting bills and does not lobby state lawmakers to write specific legislation.

If state legislatures pass the bills — it remains uncertain whether they will find support from Democrats, said Berman of Texas — the lawmakers said they hope to send a message to Congress that it should act on changing the way citizenship is defined nationwide. Ninety-two House members voted for a bill to restrict birthright citizenship in 2009, and a number of Republican senators expressed interest in considering changes to citizenship law this summer.

“When you get a whole bunch of states on board with this, we’ll try to get the Congress to change the 14th Amendment back to what it should be,” said Michigan state Rep. David Agema (R).

Otherwise, the lawmakers said they would fight the issue in the courts, as Berman suggested. If it did reach the Supreme Court, legal experts disagree on how the Court would rule, and even on whether the Supreme Court has already settled the matter. Some argue the Court affirmed birthright citizenship in United States v. Wong Kim Ark in 1898, when the Court held that the U.S.-born child of Chinese immigrants was a citizen, and in INS v. Rios-Pineda in 1985, when the Court considered whether to deport the undocumented parents of a U.S. citizen child. Others, such as influential federal judge Richard Posner, claim the Supreme Court has never affirmed that children born to illegal immigrants in the country must be citizens.

But Daniel Farber, a constitutional law professor at Berkeley Law, said the 14th Amendment does not need to be interpreted by the Supreme Court because its meaning is already clear: Anyone born in the United States is a citizen.

“It also says in the Constitution the president must be over the age of 35; you don’t need the Supreme Court to tell you what that means,” Farber said. “I usually am not this emphatic about what I think the answer is because constitutional law has a lot of gray areas, but I do feel this one is pretty cut and dry. The 14th Amendment is clear about who is a citizen.”

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