Opponents of Illegal Immigration Target Birthright Citizenship

Lawmakers Propose Blocking State Citizenship for Illegal Immigrants' Children

January 04, 2011, 10:41 PM

WASHINGTON, Jan. 5, 2011 -- A coalition of 14 conservative state legislators unveiled a plan today aimed at preventing children born on U.S. soil to illegal immigrant parents from becoming citizens at birth.

But instead of proposing a change to the Constitution, which has established birthright citizenship under the 14th Amendment, the lawmakers advocated that states pass individual laws limiting citizenship to children who have at least one parent who is a U.S. citizen.

"We're announcing a change to state laws that each state could adopt that will move us in the direction of insuring that the 14th Amendment is applied correctly," Pennsylvania State Rep. Daryl Metcalfe, who founded the coalition, told ABC News.

Metcalfe said he's alarmed by the burgeoning size and cost of America's illegal immigrant population, estimated at 11 million, and whose offspring in the United States would be able to sponsor their parents and relatives for legal residency. The children are sometimes referred to as "anchor babies."

"It's an issue that must be addressed by Congress, and in the absence of Congress' action it's important that we at the state level join together to deliver a very sound, strong message that they need to uphold and defend the Constitution," he said.

Supporters of the proposal acknowledged it would have little practical effect but hoped it would trigger broader debate and legal challenges and ultimately force Congress and the Supreme Court to reexamine the definition of U.S. citizenship.

The bills would "revive the concept of state citizenship," said Kansas Secretary of State-elect and law professor Kris Kobach, "something the framers referred to in the original Constitution."

"This is simply the definition of citizenship for state purposes. This does not change legal entitlements to anything," he said, suggesting that barring action by Congress or the courts immigrants' children would still be considered U.S. citizens by the federal government.

But the coalition also released the text of a state compact, or proposal to Congress, that would restrict conditions for natural born citizenship nationwide. If the document were to be adopted by Congress, it would assume the full force of federal law without requiring the president's signature.

The move by the State Legislators for Legal Immigration is the latest salvo in the political battle over illegal immigration and follows intense legal debate over Arizona's new immigration enforcement law, SB 1070, which more than a dozen other states have since attempted to copy.

Metcalfe and a group of conservative Constitutional scholars who helped draft the state-level plan said they believe their legislation will pass muster in the courts because of a careful interpretation of the text of the 14th Amendment.

The amendment, enacted after the Civil War to grant citizenship to descendants of slaves, reads: "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."

"Just because you're born on American soil did not mean that you were granted American citizenship automatically," Metcalfe said. "You had to be under the 'jurisdiction thereof,' including that geographic location. 'Jurisdiction thereof' was meant and was directly correlated to having an allegiance to our country by the parents."

Birthright Change: Remedy or Stunt?

Immigrant advocates said the state lawmakers' proposal amounted to a rewriting of the Constitution and violation of American ideals.

"That all children born in the United States have equal rights is a value enshrined in the 14th Amendment and the American psyche," said Linton Joaquin, general counsel of the National Immigration Law Center.

"The legislators who threaten to roll back this sacred value do more than play fast and loose with the Constitution; they suggest that we as a society should treat some American children less favorably than other American children."

Denying citizenship to certain children born on U.S. soil would "create two tiers of citizens -- a modern-day caste system -- with potentially of millions of natural-born Americans being treated as somehow less than entitled to the equal protection of the laws that our nation has struggled so hard to guarantee," said Wade Henderson, president of the Leadership Conference on Civil and Human Rights.

An estimated 340,000 of the 4.3 million newborns in U.S. hospitals in 2008 belonged to illegal immigrant parents, according to a recent analysis of Census Bureau data by the Pew Hispanic Center.

In total, 4 million U.S.-born, citizen children of illegal immigrants currently live in the country, according to the study.

Several Republican members of Congress, including South Carolina Sen. Lindsey Graham, have expressed interest in exploring a Constitutional amendment to ban birthright citizenship.

But some lawmakers say the push to change the longstanding policy is nothing but a political stunt.

Outgoing Pennsylvania Sen. Arlen Specter, whose parents were immigrants, has called U.S. citizenship by birth a fundamental right.

"The political pandering on the immigration issue has reached the hysterical level," Specter told ABC News in August. "To try to direct the effort at the children born in this country is just preposterous... How can newborn children protect themselves if politicians want to gain political gain?"

Federal courts have repeatedly ruled that people who are born in the United States are American citizens.

The Supreme Court has only addressed the issue once, clarifying in 1898 that citizenship does apply to U.S.-born children of legal immigrants who have yet to become citizens.

The United States is one of the few remaining countries to grant citizenship to all children born on its soil. The United Kingdom, Ireland, India and Australia, among others, have since revised their birthright laws, no longer allowing every child born on their soil to get citizenship.

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