Posted on 01/27/2011 10:51:23 AM PST by SeekAndFind
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.”
— Katrina Trinko is an NRO staff reporter.
We disagree. I’m Ok with that. But you have to understand that a Supreme Court verdict carries “precedent” with it.
The decision of Ark v. U.S. holds the answer to the current question.
If another case goes before the Supreme Court, the Ark decision will be one of the cases that the current Court will use in determining the new case.
Could it be overturned? Sure, although a 6 to 2 decision carries a lot of weight in it.
Would a Constitutional amendment work? Absolutely!
So why not just amend the Constitution? Amend it and this question ends. Right?
“have a permanent domicil and residence in the United States”
So is this the part that you are under the impression means “ran across the border and had a baby”?
Excatly what we went by when I was in the U.S. Border Patrol.
Rabbit trailing and moving goal posts are not legitimate forms of political debate.
The Constitution is clear on what it says. Anyone born in the United States, and under the jurisdiction of the United States, is a U.S. citizen.
The Ark decision discusses this at length.
Rand Paul and David Vitter have introduced a Constitutional amendment to require that persons be legally in the United States for the 14th Amendment to apply to their children.
I’m quite sure you are aware that most people would be opposed to amending the Constitution, which is why you are ignoring the fact that Congress is quite capable of passing a law stating what birthright citizenship entails.
As for precedent, you are also ignoring the obvious.
Ark refers to a child of LEGAL RESIDENTS.
There is no precedent there.
And it is also clear what they meant by “jurisdiction”.
If you want to pretend it applies to people here illegally, as I said, we can agree to disagree.
The individual in ELK V. WILKINS doesn't meet that standard because, "he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen." AND
"Under the Constitution of the United States as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states," http://supreme.justia.com/us/112/94/case.html
As the court mentioned in that case, Indian tribes are dealt with by treaty/legislation and their members have their own jurisdiction outside the taxing districts of the states. This has nothing to do with illegal aliens.
Ark has nothing to do with illegal aliens either.
His parents were legal, permanent residents.
You are stationed at a secluded border crossing,you are alone this night.
A doctor you know from the small town in the U.S. approaches the crossing from the Mexican side of the border where the nearest town with a hoispotal is 75 miles, but there is a small village about 10 miles back.
You go to the doctors car window and you recognize him because he often crosses here to help the locals in the area. Then you see he has a passenger that is a young Mexican girl that pregnant.
The doctor says she is having compilations with her pregnancy and she is about to deliver and if he don't get her to town she and her baby might not live.
You have no contact with a supervisor.
What do you do?
I'm not saying what is right or wrong just saying I was asked this.
I’d say let her in, get the name of the hospital and convey it and the doctor’s name to your supervisor ASAP.
So, what was the school solution?
Because you know darn well there are too many illegal loving people (even here on FR) that will fight it tooth and nail.
The idea that a reasonable thinking man could twist the meaning of the clause to include invaders from another country is insulting.
Hell, don’t debate the 14th Amendment, just nullify the first sentence of Section I, take out the first sentence and keep the rest!
I don’t know of a single slave or American Indian alive right now who has not been conferred citizenship nor any that are still having children.
S__t can the first sentence of the 14th Amendment. We already nullified parts of Section II.
The whole thing was designed for one reason and one reason only... Reconstruction and to protect the newly acquired rights of slaves. Could have been handled better by simply enforcing the declaration of their status as citizens. The law of unintended consequences in action. The stupid thing reads like a knee jerk reaction type of gun control legislation for today.
No wonder it is FUKT’d, it was written by a bunch of damn bitter Yankees and bleeding heart sympathizers!
It angers me to know that Americans of Hispanic descent are willing to side with lawbreakers just because of ethnicity.
I think we would have a lot less problems if we had stuck with Elk v Wilkins!!!
I agree. In fact, if illegal aliens are subject to the sole jurisdiction of the United States, how can our government legally deport them? Our government can't deport American citizens, as they are subject to the sole jurisdiction of the United States.
The issue is solely the result of the machinations of modern day, agenda-driven bureaucrats, with no supporting language in the Constitution or the 14th A.
As one member of the USSC remarked in the controversial Wong Kim Ark case regarding the 14th:
"The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."
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