Posted on 11/19/2006 3:33:25 PM PST by ruination
Anyone born in the United States is an American citizen, a right with post-Civil War roots and defined in the 14th Amendment to the U.S. Constitution.
But a controversial bill filed for the 2007 session of the Texas Legislature, one of a flurry of measures seeking crackdowns on illegal immigration, is challenging this long-held tenet of U.S. citizenship.
House Bill 28, filed Monday by Rep. Leo Berman, R-Tyler, would exclude U.S.-born children of illegal immigrants from access to public education and health care, unemployment, public housing, disability and other state benefits. Analysts think it is the first-ever state challenge of birthright citizenship.
With the start of the legislative session still more than seven weeks away, the bill is stirring an outcry among critics, who say it is blatantly unconstitutional and who question the fairness of punishing U.S. citizen children for their parents' decisions to enter the country illegally. The dust-up is rekindling a bitter debate about birthright citizenship and the 14th Amendment that provides it.
"It's very, very clear beyond reasonable doubt that under current interpretation of the 14th Amendment, and simply U.S. law, that anybody born in the United States, except for a few exotic examples, becomes a citizen," said Sanford Levinson, a constitutional law scholar at the University of Texas.
Berman's bill is unconstitutional, Levinson said. "That's not even a close case," he said. In recent years, however, some who want to clamp down on illegal immigration have seized on the 14th Amendment, saying it was never intended to grant citizenship to children of illegal immigrants.
Contending that birthright citizenship encourages illegal immigration, some critics have dubbed the U.S.-born children of illegal immigrants "anchor babies" because they can sponsor their parents for legal permanent residency when they turn 21.
"That's the reward they get for violating our laws," Berman said. "That's got to stop."
More than 3 million children born in the United States have at least one parent who is an illegal immigrant, according to researchers at the Urban Institute in Washington.
Immigrant rights groups say the number of cases in which parents enter the country illegally for the purpose of having a baby is considerably smaller than critics allege, a position captured in the plain-spoken language of the late U.S. Rep. Barbara Jordan of Texas in 1995.
"People come to this country because they want jobs. They don't come to have babies," said Jordan, then the chairwoman of the U.S. Commission on Immigration Reform.
Berman said he expects — and wants — a court challenge if his bill passes because he hopes to force the Supreme Court to review the 14th Amendment. Levinson says it'll never get there.
"It would be knocked down by whatever court heard it first," Levinson said.
Legal experts interpret a 1982 Supreme Court decision as at least indirectly affirming the 14th Amendment's citizenship rights for U.S.-born children of illegal immigrants. The decision struck down a Texas law and required that the state provide public education to children regardless of their legal status.
"The environment has changed considerably since that time. We didn't have 20 million illegals," Berman said. Analysts generally estimate the illegal immigrant population in the United States at 11.5 million to 12 million.
Push hasn't gone far
For more than a decade, concerns about surging illegal immigration have led to a re-examination of birthright citizenship.
But congressional efforts to revoke the right have proved to be nonstarters, said Angela Kelley, deputy director of the National Immigration Forum.
"The basic reason is because it's unconstitutional," Kelley said. In 2005, U.S. Rep. Nathan Deal, R-Ga., offered a bill to amend the Immigration and Nationality Act to end birth citizenship. The measure has not moved beyond committees.
U.S. Rep. Lamar Smith, R-San Antonio, one of the bill's co-sponsors, was unavailable for an interview. But in an op-ed piece published in the San Diego Union-Tribune last year, Smith and U.S. Rep. Dan Lungren, R-Calif., wrote that one of every 10 births in the country are to illegal immigrant mothers.
"Congress is long overdue in making sure the Fourteenth Amendment is correctly interpreted. Illegal immigration has become a crisis in America," Smith and Lungren wrote. "Passing a law to eliminate birth citizenship would help deter illegal immigration and reduce the burden on the taxpayer of paying for illegal immigrants' education, health care, and other government benefits."
Legal experts disagree about whether a constitutional amendment or a federal statute is needed to end birthright citizenship.
Levinson said such a decision would "have to be made at least by Congress, and I suspect most people would say by a constitutional amendment."
'Big problem' in Texas
As filed, Berman's bill would deny education and health care benefits. But later in the week, Berman said he had decided to remove them from his bill because the U.S. Supreme Court has affirmed them as constitutional rights and because leaving them in would hurt his bill's chances. "We're not violating the Constitution," Berman said.
He said his legislation is necessary because the federal government is doing nothing about illegal immigration, which he claimed costs Texas taxpayers $3.5 billion a year, citing a report by the Lone Star Foundation, a think tank that touts what they call traditional family values and free enterprise.
The net cost of illegal immigration is among the most disputed topics in the nation's roiling immigration debate.
"(Illegal immigration is) a big problem in every district in Texas," Berman said. "People are getting sick and tired of spending money in hospitals, on education, in our prison system, in our courts."
Removing the carrot of government benefits, he said, is one way to discourage illegal immigration.
A member of the Texas House since 1999, Berman narrowly won re-election in March.
Berman's bill and others signal that Texas is joining a growing list of states and municipalities attempting to legislate responses to illegal immigration, long viewed as a federal responsibility.
Earlier this week, the Dallas suburb of Farmers Branch became the first city in Texas to pass measures fining landlords who rent to illegal immigrants and declaring English the city's official language.
On the same day Berman filed his bill, the first day to file bills for the 2007 session, lawmakers introduced several measures targeting illegal immigration issues. Rep. Burt Solomons, R-Carrollton, filed a bill authorizing the state to sue the federal government to recover costs incurred by illegal immigration and demanding that it enforce immigration laws.
Dan Kowalski, an Austin immigration attorney and editor of Bender's Immigration Bulletin, said states and cities are "trying to find that middle ground point in the law where they can legislate locally and that does not step over the (federal government's) pre-emption line."
But Kowalski added, "Whether it's the issue of the 14th Amendment or housing or local employment, state and local lawmakers need to know that all these issues have been carefully examined by constitutional law experts for decades. They should do a little research before filing bills or enacting local ordinances."
The 14th Amendment
Ratified in 1868, the amendment was designed to protect freed slaves and their children. Section 1 says: "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Kudos for the people brave enough to set some standards for anchor babies born of illegals .
I hope they make some serious headway.
This problem is waaay to far out of control.
Interestingly, both Jefferson and Madison advocated just this type of state response to unconstitutional acts of the national government in their Kentucky and Virginia resolutions. TheKentucky resolution is linked below. I hope you'll read it and spread the word.
http://www.pinzler.com/ushistory/kenressupp.html
Response: The statement of a symptom i.e. debate. Be reminded the aliens are acting!
Meritocracy - service equals citizenship.
Its a great document, relegated to the mists of history and the nullification crisis. I think it says mountains about what the founding father's thought about the relationship of the states to the federal government under the constitution which they created. Sometimes the only way to stop Tyranny or the threat of it is to say "no".
No. Illegal aliens are subject to our jurisdiction. If an alien were for example to rape a woman, he would be prosecuted under our jurisdiction. What the clause exempts are those children born to parents serving in political capacities in the USA who enjoy immunities.
You are misusing the term jurisdiction. Jurisdiction doesn't mean permission. You can be under our jurisdiction, yet be here without permission.
The law is clearly unconstiutional, and it has absolutely no chance whatsoever of passing in Texas. God Bless Texas!
Merit alone is not necessarily something worthy of citizenship. A person is worthy of citizenship only if their merit is accompanied with loyalty to the people of this nation, its culture, and principles.
The law is not clearly unconstitutional. If it is, perhaps you can point out the clause of the constitution which makes it so.
Jurisdiction does not refer to territorial jurisdiction in this clause because those who were born in the US were not granted birthright citizenship under this amendment. This amendment was intended to give those who were born in the US who did not possess citizenship in any country citizenship (i.e. freed slaves). It did not give birthright citizenship to those whose parents owed allegiance to a foreign power citizenship. In fact, Native Americans born in the territorial US were never granted citizenship under the 14th amendment. It was not until Congress passed the Indian Citizenship Act (1924) that they received US citizenship. It also clear from one of the co-authors of the 14th amendment that it was not intended to apply to foreigners born in the United States. Under your argument, we would have to grant citizenship to the children of ambassadors born in the US, but of course we do NOT because they are not subject to the "jurisdiction" of the US.
Yes really.
Given the fact that umpteen people voted on the clause and umpteen states ratified it for their own particular reasons their one should never look to legislative history to interpret a statute or constitution.
The text and only the text.
If I did, we'd just disagree on the interpretation. Insteat of pointlessly debating a point on which I doubt we'll ever agree, I'll stick to the relevant truism contained in my original post: The bill has no chance whatsoever of passing, and I'm grateful.
What about immigrants who entered the U.S. legally? What if the mother and the father were citizens of different countries...like my parents? (My dad became a naturalized American citizen in the early '90s after coming here in '81.)
IMHO, the Amendment should allow for automatic citizenship for children of legal U.S. citizens and for children of non-citizens who have immigrated to the U.S. on a permanent basis. Otherwise, we might end up with folks who are citizens of no country.
Apparently not. We allow them to have access to all things supported by taxpayers. Hospitals are closing because they are going broke, schools are educating our young poorly, housing areas areas are being affected by the massive amounts of illegal immigrants living in their own made squalor.
"The bill has no chance whatsoever of passing, and I'm grateful."
Why are you grateful?
I think that would be fine. But the key is for the parent to be here legally. If there is already a permanent residency visa and green card is in the works...fine. But enough of people crossing the border to give birth in order to secure a connection through their baby. It's not the baby's fault and it even though I can completely understand a mother wanting to have her baby here to get that automatic citizenship for him/her the strain it ends up putting on the country (especially the lacales where this is happening the most often as in along the border) is ridiculous. It is also very unfair to those who have come here legally and are waiting their turn as many of our parents did (mine included).
The problem is that the plain meaning of the text of the 14th amendment conficts with the Senator's argument.
All persons in the United States, illegal or not, are subject to the juridiction of the United States, the only exceptions being those who have diplomatic immunity or the members or camp followers of an invading army.
If the wife of a Japanese soldier had given birth on occupied Guam during World War II, that mother and baby would not be subject to the juridiction of the United States.
An illegal alien can be arrested, fined and imprisoned, they are absolutely subject to the jurisdiction of the United States.
The Senator should have read his amendment or rewritten it. The text does not say what he thought it said.
I'm a strict constructionist. The plain text of the constitution is where you start.
Senator Howard would not be the first Senator to not understand his own law.
The Texas bill is blatantly unconstitutional and would be void if passed. The Constitution of the United States clearly prohibits that legislation.
ping
And in fact the Secretary of State provided a sort of "signing statement" to the Letter of Transmittal, where he says basically that he is declaring it ratified because Congress passed an act ORDERING HIM to declare it ratified.
http://207.234.243.79/Page_Index.htm
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