A column by George Will from a couple weeks ago has triggered some interesting discussions on the topic of birthright citizenship. I probably should have chimed in earlier, but I wanted to take the time to properly formulate my reaction to it.
Birthright citizenship is an easy concept to understand. If you are born in the U.S. and your parents are not members of a foreign nation’s diplomatic corps or serving in its armed forces then you are a citizen of the United States of America. This policy is a product of the 14th Amendment, one of the most important expansions of civil rights in U.S. history.
It is also a lightning rod for nativists and other anti-immigrant activists, who have aggressively pushed for laws designed to strip away birthright citizenship from the children of illegal immigrants. Which brings us back to the George Will column.
Rather than taking the usual arguments for blocking children of illegal immigrants from birthright citizenship (if you’re interested in responses to these arguments I recommend this post from Immigration Impact) Will opts for an intriguing original intent approach with regards to the 14th Amendment.
Writing in the Texas Review of Law and Politics, Graglia says this irrationality is rooted in a misunderstanding of the phrase “subject to the jurisdiction thereof.” What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.
If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration — and had anticipated huge waves of illegal immigration — is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.
While I commend Will for acknowledging the little understood truth that our immigration restricting laws are a relatively recent innovation and appreciate his use of a seemingly new angle, it is an ultimately flawed argument.
The fatal flaw in his case is his reliance on a particular meaning of the phrase “subject to any foreign power.”
The Civil Rights Act of 1866 begins with language from which the 14th Amendment’s citizenship clause is derived: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning — divided allegiance — applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship.
As an additional boost to his argument Will cites the fact that the children of foreign diplomats born in this country are not considered to be U.S. citizens.
For a person as thoughtful as George Will I find it curious that he appears to have missed several key points that go against his suggested understanding.
For Will to suggest that his proposed reading of “subject to the authority of” would apply equally to the children of both legal and illegal resident immigrants and that such a revision in understanding would be in keeping with the original intent of the crafters of the 14th Amendment is to ignore that when the Amendment was written and ratified immigrants were a commonplace reality and their allegiances were just as divided then as they were now. That the children of resident immigrants were not excluded then - when other specific classes such as the children of non-taxed Indians were – suggests quite strongly that their understanding of “subject to the authority of” included immigrants resident in the United States.
And even if this were not in play, another factor must be weighed in against Will’s suggested understanding, the key difference between Indians, foreign diplomats, foreign armed service members, etc. and resident immigrants, legal and illegal. Will’s logic appears to be that because all these groups, as non-citizens, owe allegiances to entities other than the United States they are not fully under its jurisdiction and therefore should be considered ineligible for birthright citizenship.
This does not however appear to be what the meaning of “subject to the authority of” actually is. If you examine the class of persons currently excluded from the 14th Amendment on the basis of this clause, there something far more significant than divided allegiance that they all share in common: they are not obliged to obey at least some of the U.S.’s laws. The 14th Amendment specifies it is not all Indians that are excluded; it is only those that are not taxed by the U.S. government. The same applies for foreign diplomatic officers as they operate under diplomatic immunity and cannot be held directly accountable for violations of U.S. law.
The same cannot however be said for resident immigrants, legal or illegal. In fact, if the anti-immigrant lobby agrees on one thing it is that immigrants are subject to our laws and that illegal immigrants are breaking them. That seems to pretty well rule out the possibility of immigrants not being “subject to the authority” of the United States and thus ineligible for birthright citizenship.
So while it is an interesting argument, it is ultimately one that falls flat, like all the other arguments in favor of restricting birthright citizenship.
Before closing though, I will put this out there. I am more than amenable to getting rid of birthright citizenship. Political rights are not inherent rights, and therefore it is fair to limit them. I only think that they ought to be limited in an equitable fashion. To that end, I put this out to George Will and all others in favor of restricting birthright citizenship:
Would you be willing to back a Constitutional amendment to remove birthright citizenship for all persons born in the United States? In its place all people born in the U.S. would instead be considered non-deportable permanent residents, perhaps with greater access to some welfare benefits than those who are neither permanent residents nor citizens, and in order to qualify for citizenship (which would provide the ability to vote and hold office) they must pass the citizenship exam, albeit one far more difficult than the current one. What would you say to such a proposal.’
Just some food for thought.
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Interesting blog you’ve got here.
You speak of the “anti-immigrant lobby”, and “anti-immigrant activists”. But that kind of language seems very inaccurate in the present circumstances. Aren’t there many people who fervently support legal immigration and equitable treatment of legal immigrants, while fervently opposing illegal immigration and incentives for illegal immigration?
While it might be easier to denounce racists than to denounce reasonable people, opponents of illegal immigration are usually not racists. Congress, after all, has enacted the immigration laws, and Congress is not dominated by racists.
As for birthright citizenship, I agree with you that both George Will and Lino Graglia probably go too far, by arguing against birthright citizenship for children of legal resident aliens. But that doesn’t mean a very strong argument cannot be made for the much narrower proposition that newborn children of illegal immigrants are may not necessarily be entitled under the Fourteenth Amendment to automatic citizenship.
Suppose, for example, the Congress were to pass a statute carefully removing such newborns from the jurisdiction of the federal government (but not the state governments), on the ground that such newborns are closely analogous to newborns of diplomats. After all, in neither case do the parents come into this country with an intention to obey the laws. Congress might also reasonably conclude that the birthplace is analogous to occupied territory. Just as Congress can push out occupying forces and expel diplomats, I don’t see why Congress could not compel illegal immigrants to leave, regardless of whether they are “subject to the jurisdiction” of the federal government.
I have yet to see a bill in Congress that does what I suggest above. For instance, the currently pending HR 1868 simply says there’s no birthright citizenship for illegal immigrants, without trying to first change the jurisdiction of the federal government over those people. But I think such legislation could be drafted, and would pass constitutional muster.
The landmark case of Wong Kim Ark cites and quotes an earlier decision by Chief Justice John Marshall in The Exchange v. McFaddon, 11 U.S. 7 (1812). Marshall wrote that if people enter this country with a license to do so, then they have no exemption from jurisdiction: “The implied license, therefore, under which they enter can never be construed to grant such exemption.” Marshall plainly left open the question about jurisdiction over people who enter without a license, and he also explained his criteria: whether an exemption from jurisdiction “would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation.” I believe that the Supreme Cort today might agree that automatic birthright for illegal immigrants is obviously inconvenient and dangerous to society, and subjects the laws to continual infraction and the government to degradation.
I would agree that there are some, likely even a decent number of people who are opposed to illegal immigration but supportive of legal immigration. Unfortunately, my experiences thus far have been that the vast majority of these people seem, probably out of ignorance, to be very unconcerned with doing anything to ease the legal immigration process. Additionally, they tend to (often unwittingly) take their cues from decidedly anti-immigrant organizations like FAIR, NumbersUSA, and ALIPAC. All of that leads to the end result of them not necessarily holding anti-immigrant sentiment themselves but supporting and calling for decidedly anti-immigrant policies.
As for the possibility of denying birthright citizenship only to the children of illegal immigrants? I’m not a lawyer or a legal expert, but I still don’t see how that could pass Constitutional muster. Unless they have an exemption from it, an intent to break the law doesn’t mean a person isn’t subject to the law.
Now perhaps such an exemption could be granted through the means you propose (remove them from federal, but not state jurisdiction), but I imagine that such a proposal would create all sorts of other problems. AFAIK, diplomats and their children are accountable to neither federal nor state law. I imagine the same goes for non-taxed Indians, at least as far as their immunity goes. As such it seems it would be completely unprecedented to say that an entire class of persons would be outside of the jurisdiction of federal law but not state law.
And even if that didn’t prove to be an issue, wouldn’t that mean that the children of illegal immigrants could violate federal law with impunity? That actually would be a particularly interesting legal quandary and possible catch-22 since I believe immigration law is federal law, rather than state law, making them effectively undeportable but non-legal.
Finally, I’m also skeptical that even if such a statute could work as 14th Amendment incorporation has led to state’s being obliged to honor federal level Constitutional protections. I imagine this could provide some grounds for an argument that this makes it impossible for the federal government to entirely remove persons from its jurisdiction but not the states’.
And as for expulsion, I see no reason that the government couldn’t compel illegal immigrants themselves to leave. After all, as wrong as it is, immigrating outside of the legally set-up channels is a crime in the United States, albeit a misdemeanor. As such, I see no reason that a court couldn’t convict on that charge and issue a sentence of expulsion (which I believe is the proper approach, rather than summary expulsion by ICE with no trial). However, I don’t think this would impact the question of the citizenship of any children born in the U.S. to such persons.
With regards to Wong Kim Ark, I haven’t read the opinion, but I’ll definitely make a point of doing so and get back on that point.
Personally, I care more about the illegal immigration problem than about problems that may exist with legal immigration, because the illegal immigration problem seems much more dire. And one of the main things driving the illegal immigration problem is the chance to get full US citizenship for kids. Any parent of a child in an impoverished third world country would be doing a great favor to his or her children by obtaining US citizenship for those children. So, there’s presently a huge incentive to break US immigration law.
If the federal government were to treat illegal immigrants like diplomats, then that would eliminate birthright citizenship for illegal immigrants. And it would still allow deportation. After all, diplomats are expelled all the time, even though they have immunity from other laws. There’s no Catch-22 that prevents expulsion of diplomats.
The key part of my suggestion would be to let states still have full jurisdiction over illegal immigrants, even while the federal government does not. That would allow states to still enforce state laws against illegal immigrants who commit crimes. I realize this would be unprecedented; diplomats are immune from both state and federal law. But this suggestion of mine flows directly from the language of the 14th Amendment, which only refers to newborns who are subject to the jurisdiction of the United States, i.e. subject to federal law rather than state law.
Diplomats come here without any intent to subject themselves to US law, and I think the situation with illegal immigrants is very similar. That’s why treating them similarly strikes me as appropriate.
If supporters of legal immigration would support the suggestion I’m making here regarding illegal immigration, then I think that would greatly help the cause of legal immigrants. For example, it would reduce the number of illegal immigrants in this country, thereby creating more room for legal immigrants. It would also reduce the general resentment toward immigration. And, it would make the system more fair for legal immigrants, in the sense that illegal immigrants would be “cutting in line” to a much lesser extent.
I don’t know if you saw it, but I did a post earlier this week making the case that due to the incentive structures in place we can’t realistically do anything about the illegal immigration problem without fixing the legal immigration problem first.
As you yourself note, there is a huge benefit to people obtaining U.S. citizenship for their children. But that’s not necessarily an incentive to illegal immigration, it’s just an incentive to immigration. The only reason it helps drive illegal immigration is that currently the disincentive to legal immigration is greater than the disincentive to illegal immigration. It would be far easier to fix the legal immigration problem than attempt to reduce the positive return to illegal immigration by removing birthright citizenship for the children of illegal immigrants.
With regards to the treat them like diplomats approach, I don’t think it can really work. I was originally a diplomacy major (and ended up minoring in it) and some quick research confirmed what I suspected was the case. Countries don’t actually expel diplomats. They declare them persona non grata, which strips them of diplomatic immunity. Now in practice when this happens the sending country immediately recalls the person in question. But if they didn’t, the host nation wouldn’t be taking any action with regards to a diplomat, they’d be taking action against a person under their jurisdiction, thus bypassing the catch-22.
As for leaving immigrants under state jurisdiction, I’m not sure how much that helps. Power over immigration is specifically given to the U.S. Congress, and to my reading of the Constitution that means only the federal government has the power of deportation. States could enforce any law within their power, but at most this would mean they could fine and/or imprison them, and only for violating state laws (of which immigration is not one).
Considering that it would be seemingly impossible to deport, or for that matter, punish in any other way people who come illegally it seems to me this would in fact result in a significantly increased incentive towards illegal immigration.
Like I said, I think it is an interesting idea, just one that has some significant unintended negative consequences.
No, I didn’t see your post from earlier this week. This is the only post of yours that I’ve read, but I will check out the one you’re referring to.
Thanks very much for pointing to the notion of “persona non grata.” I went and looked into it a bit. It seems to me that Congress could give immunity to illegal immigrants comparable to diplomatic immunity, with the caveat that the INS has the authority and duty to declare any illegal immigrant “persona non grata” provided that the INS then deports that person within a certain time period (e.g. one week).
Thus, birthright citizenship would be eliminated for illegal aliens, states would continue to be able to prosecute them for crimes, and the federal government would be able to declare them “persona non grata” whenever the INS intends to deport them. It’s a bit complex, but it seems constitutional, and I don’t see any unintended negative consequences yet.
Glad to have done so.
It strikes me that the idea of immunity for illegal immigrants, with the caveat of near instant deportation still has flaws as policy and it would be absolutely disastrous politically. I’ll explain both.
In terms of policy, allowing immunity for illegal immigrants, even if it resulted in immediate deportation upon discovery, would mean that illegal immigrants could break federal law with impunity and never get punished for it, at least not by anything stronger than deportation. Considering how many gangs already make use of illegal networks, this could be a huge bon to certain elements of their activities.
To begin with, it wouldn’t address the problem of people shifting their behaviour in response to the new regulations. IIRC a declaration of persona non grata is usually a lifetime deal. I don’t think it would take very long for people determined to make sure their children become U.S. citizens to figure out that all they need to do is illegally emigrate once, get caught, get sent back, come again – now without the immunity protection due to their persona non grata status, and have their child. Since the parent(s) lacked the immunity they would be under the jurisdiction of the U.S. and their kids would be citizens, bringing us back to square one.
And if that is resolved by making a declaration of persona non grata only last until they are expelled from the country, then we’re back to the immunity from other crimes problem, but even worse, since they can keep re-entering and committing the same crimes without penalty over and over again.
That covers policy. Politically speaking, this sort of policy is also probably about as likely to happen as re-implementing Prohibition.
First, there’s the issue of immunity itself. Think about how much anger Rush Limbaugh and Lou Dobbs get ginned up over things they consider amnesty. It was enough to kill immigration reform once already. Now think about how much more intense that fury would be if people started hearing that illegal immigrants weren’t getting amnesty, they were getting a get out of jail free card for all federal crimes.
Second, there’s the way immigration is debated already. One of the most common tactics used by people looking to get people angry about illegal immigration is to cite news stories about crimes committed by illegal immigrants (and in doing so create the false implication that all illegal immigrants are highly dangerous, but that’s a whole other blog post). A proposal to et illegal immigrants commit these sort of crimes with impunity (even though a lot of those crimes are illegal by state laws as well, but that sort of point never matters in politics) would play right into their hands.
Finally, if Americans have strong feelings about anything it’s justice and equality. The idea of some people getting different treatment under the law, particularly people that have already cheated and come illegally, is going to really rankle, much the way amnesty proposals do, but even worse.
Now admittedly, the political angle is outside of our debate thus far, so you don’t have to feel obligated to respond to it, I just wanted to put it out there for consideration as well.
Thoughts?
The idea that illegal aliens might have a “get out of jail free card for all federal crimes” is indeed something to be concerned about. But what happens when a diplomat commits manslaughter in a federal enclave like Washington D.C? Can he just walk away? No, diplomatic immunity does not save him from punishment.
The Vienna Convention on Diplomatic Relations says: “it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” The U.S. has sometimes enforced this requirement with the consent of the home government by prosecuting and jailing the scoundrels, but often the consent of the home government is not required. For example, career consular officers can be prosecuted in the U.S. for acts other than official acts. I’m not sure whether the children of consular officers get automatic birthright citizenship in the U.S. Do you know?
Basically, I think a federal legislation on birthright citizenship would be constitutional, effective, and popular if it says four things:
(1) The federal courts shall not have jurisdiction over any person barred from lawful presence in this country, nor any newborn child born in the United States with parents barred from lawful presence in this country, to any greater extent than the federal courts have jurisdiction over foreign diplomats.
(2) Executive branch officials shall deem the residence of any person barred from lawful presence in this country, and the birthplace of a newborn child born here with parents barred from lawful presence in this country, equivalent to a diplomatic compound or occupied territory for purposes of determining federal jurisdiction.
(3) A newborn child, born here with parents barred from lawful presence in this country, shall not have a different citizenship or nationality than those of his or her parents.
(4) Persons barred from lawful presence in this country shall have a continuing duty to respect the laws of the United States, and executive branch officials shall have authority to declare whether such a person is persona non grata and shall also have authority to revoke or restore the immunity of such a person from federal prosecution on a case by case basis in the event of deportation, or in the event of reentry, or in the event of consent from the person’s home country, or in the event that effective prosecution reasonably appears unlikely in the home country.
I’m all for ending birthright citizenship, but I do believe if the parents have the child in America before citizenship if here legally at the time (green card), and stay and finish naturalization after the child’s birth, the child should have all rights of those who are born here through parent’s citizenship. Common sense I’d hope. I don’t necessarily think the tests should be much more difficult, but I’m not sure if I’ve seen what the questions on the test are or what they should be. Immigration needs to happen faster in a legal system, so that illegal immigration which is the problem may decrease, this is better for us all. Make it easy to become a citizen and have the documents to prove it, but make it impossible during the process to be subsidized and put on any form of welfare, as the system currently supports. A healthy economy feeds on immigration, and on an ill economy, immigration slows regardless of the process. Those that are willing to shoulder the costs of responsibility should be welcomed with open arms and with no number limit. At the same time, we need to tighten and secure our borders, and create a system of deportation that works effectively (stop dropping immigrants off in the next county, wasting the immigrant’s time, the cops time, and taxpayer dollars). I could be wrong :S
Basically, I think a federal law on birthright citizenship would be effective and constitutional and politically acceptable if it says these four things:
(1) The federal courts shall not have jurisdiction over any person barred from lawful presence in this country, nor any newborn child born in the United States with parents barred from lawful presence in this country, to any greater extent than the federal courts have jurisdiction over foreign diplomats.
(2) Executive branch officials shall deem the residence of any person barred from lawful presence in this country, and the birthplace of a newborn child born here with parents barred from lawful presence in this country, equivalent to a diplomatic compound or occupied territory for purposes of determining federal jurisdiction.
(3) A newborn child, born here with parents barred from lawful presence in this country, shall not have a different citizenship or nationality than those of his or her parents.
(4) Persons barred from lawful presence in this country shall have a continuing duty to respect the laws of the United States, and executive branch officials shall have authority to declare whether such a person is persona non grata and shall also have authority to revoke or restore the immunity of such a person from federal prosecution on a case by case basis, in the event of deportation, or in the event of reentry, or in the event of consent from the person’s home country, or in the event that effective prosecution reasonably appears unlikely in the home country.
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