House Conservatives Want End to Birthright Citizenship (Flashback 2005)

House conservatives today announced plans to amend a Republican-sponsored immigration reform bill with language calling for the construction of a 2,000-mile fence along the U.S.-Mexico border and a provision that would deny citizenship to children born in the U.S. whose parents aren’t citizens.

The legislation, sponsored by House Judiciary Chairman James Sensenbrenner (R.-Wis.), is expected to be voted on by the full House as early as next week. Sensenbrenner has worked closely with the White House to craft the bill (H.R. 4437) — the reason conservatives cited for the exclusion of key enforcement tools.

Rep. Tom Tancredo (R.-Colo.) organized Thursday’s press conference featuring about 20 other conservative Republicans. Each complained about a particular area they want to see addressed (see full list below).

Among those issues likely to be the center of debate next week: the lack of language authorizing a physical structure along the border and the exclusion of a so-called “anchor baby” provision undoing birthright citizenship.

The House conservatives said they would attempt to attach two bills previously introduced to Sensenbrenner’s legislation. House Armed Services Chairman Duncan Hunter (R.-Calif.) is sponsoring the TRUE Enforcement and Border Security Act (H.R. 4313), which authorized the fence construction, and Rep. Nathan Deal (R.-Ga.) introduced the Citizenship Reform Act (H.R. 698), which denies birthright citizenship.

Responding to Sensenbrenner’s bill, Rep. J.D. Hayworth (R.-Ariz.) said, “Both the timing and the thin patchwork context of this proposed House bill reinforced my concern that Washington continues to view illegal immigration as a political problem to be managed, rather than an invasion to be stopped.”

Conservatives flatly rejected any compromise with the Senate that would include a guest-worker or amnesty proposal. During a House Judiciary Committee meeting today, Republicans rejected a Democrat-sponsored amendment that would have attached a guest-worker proposal to Sensenbrenner’s bill.

Tancredo, leader of the 92-member House Immigration Reform Caucus, wouldn’t commit to any specific plan of action regarding amendments. His spokesman said no vote count had been done on any of the potential amendments, adding that the first priority is to simply convince GOP leaders to allow votes on amendments to the bill.

The Constitution provides for two means of acquiring citizenship: 1. By naturalization; 2) by birth. By either means the candidate must be "subject to the jurisdiction" of the United States. Congress has absolute discretion in setting the terms of naturalization, providing it is uniform, but has no role to play in affecting citizenship acquired through birth. That means that the Congress can exercise discretion in granting (or withholding) citizenship by naturalization but may not restrict citizenship obtained through birth. In other words, naturalization is defined by Congress and citizenship by birth is defined by the Constitution.

For more than 100 years the law has been settled by the Wong case that citizenship is created jus soli that is by accident of geography providing the birth child is "subject to the jurisdiction." This has nothing to do with naturalization. Some have tried to get around this century long holding by arguing that "subject to the jurisdiction" means loyalty rather than the power of the state to enforce its laws over the individual. That argument was explicitly rejected. American Indians and diplomats are to various degree and for various reasons not "subject to the jurisdiction thereof." These exceptions prove the rule because for various reasons and to various degrees they are not subject to laws.

Some have argued alternatively that there is a power in Congress to restrict citizenship gained by birth by restrictively defining the jurisdiction of the United States. In support, they point to article 1 section 8 of the Constitution which provides that "Congress shall have the power… To establish a uniform rule of naturalization." But we are not speaking here of naturalization but of constitutionally defined citizenship by birth.

Efforts to exempt children born in the US of aliens by having Congress declare that the United States has no jurisdiction over these children simply will not pass the laugh test. Who then would have power to compel them to obey our laws, Cuba, North Korea, Iran? Although Congress has the power to control the jurisdiction in the federal court system that is a different concept from the existence of the inherent right of the nation to exercise sovereignty. It is the latter to which the fourteenth amendment refers and not the power to control article 3 courts.

I regard the fourteenth amendment creation of citizenship by birth to be a civil war remedy for Dred Scott but which by its wording and probable intent has wrought pernicious unintended consequences in the twentieth and twenty-first century. I approve of every attempt from legislation to constitutional amendment to change the doctrine but I do not deceive myself about the current state of the law or of the probable ruling of the Supreme Court considering the constitutionality of legislation restricting birth citizenship.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.