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The Birthright Citizenship Debate

Some GOP lawmakers have proposed legislation to eliminate birthright citizenship, but legal expert Margaret Stock says these proposals would create vast logistical and social problems and are unlikely to succeed.

January 26, 2011

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Immigration and Migration

In an effort to try to curb illegal immigration, a group of state and federal Republican lawmakers have recently introduced legislation to repeal birthright citizenship (NYT), which grants citizenship to everyone born in the United States regardless of their parents’ status.  The proposed House bill has forty-five co-sponsors, compared with one co-sponsor for a similar bill in the previous Congress, but legal expert Margaret Stock says there is little chance these proposals will succeed in the long run. Stock says elimination of birthright citizenship would increase the number of illegal immigrants--because the second generation would have no chance for documentation--and create a bureaucratic nightmare. "They never talk about how expensive this would be, they never talk about funding it, and they never talk about the practical aspects," says Stock. "Even the states that are proposing this haven’t talked about how they are going to administer this."

Birthright citizenship was established under the fourteenth amendment to reverse the U.S. Supreme Court’s Dred Scott decision holding that people of African descent could never become citizens. In the last several weeks, some conservative lawmakers have introduced legislation to repeal birthright citizenship. Can you lay out the basics of these proposals?

There are two general approaches. One is to pass a federal statute that would reinterpret the fourteenth amendment, [which] is the approach being taken in Congress. Basically, it looks at the language in the fourteenth amendment that says "subject to the jurisdiction" and redefines that. Previously, "subject to the jurisdiction" meant subject to the law of the United States. If somebody was born in the United States and their parents were subject to the laws of the United States, then the person would become an American citizen.

There have been a variety of proposals [by conservative lawmakers] to reinterpret "subject to the jurisdiction," so it doesn’t include anybody who’s not a citizen or lawful permanent resident. For example, a foreign student who comes to the United States to attend college would not be considered subject to the jurisdiction of the United States for purposes of the citizenship of a child born to that student. That is a radical change. The State Department has never interpreted the fourteenth amendment that way; no court has ever interpreted the fourteenth amendment that way.

There are some people who are convinced that getting rid of birthright citizenship will stop illegal immigration... In countries that don’t have birthright citizenship, they still have lots of illegal immigration.

At the state level, they are trying to pass laws and enter into something called a "compact between the states" that would allow for two different types of birth certificates. Generally, what the state legislation does is try to redefine "subject to the jurisdiction," so that if you are born in the state of Arizona you would have to show that your parents had a certain type of status or you wouldn’t get a birth certificate entitling you to fourteenth amendment citizenship. You’d get some other kind of birth certificate.

The [state and federal] efforts essentially attempt to create two categories of people born in the United States. One group of people would be citizens at birth. The other group of people wouldn’t be, although it’s not clear what status they would have. There is no provision in these laws to give everyone a green card if they are born in the United States and they don’t qualify for the new type of birthright citizenship. If these proposals are successful, it will be a huge change.

What are the chances that either of these approaches will be successful?

They have zero chance of success in the long run. The only possible way they could succeed is through a constitutional amendment. That wouldn’t be effective until it actually got ratified, which means it wouldn’t solve the current problem. Some future cohort of babies born in the United States would have a tremendous bureaucratic burden to prove their status. Some of them would end up being stateless. We would have to figure out what to do with them. The other issue that is interesting is looking at the state law, they don’t actually take away citizenship of children of undocumented immigrants.

Do you see this as a way to make more noise on the immigration debate or are they viable proposals?

I don’t think it’s a viable proposal because it doesn’t reflect an actual understanding of how our citizenship and immigration laws work, but it resonates a lot with people on a gut level. Many people are upset that there are lots of undocumented immigrants in the country. They are upset that the government hasn’t been able to solve this problem. At some knee-jerk level, [they believe that] punishing [the children of undocumented immigrants] will help solve the problem. There are some people who are convinced that getting rid of birthright citizenship will stop illegal immigration. There is no evidence that this would be the case. In countries that don’t have birthright citizenship, they still have lots of illegal immigration. There is plenty of evidence that it would increase the population of illegal immigrants because it would make [it difficult] to cut off illegal immigration at the second generation.

How do our laws compare with those of other countries?

In the last twenty, thirty years we’ve tightened up the border and made our laws extremely complicated. The one law that people point to as liberal is the fourteenth amendment, because it is a very simple, bright-line rule. Everyone can understand that someone born within the geographic boundaries of the United States and subject to our laws is a citizen.

We put in our Constitution our definition of citizenship because of the Civil War and the Dred Scott case. Most countries don’t put birthright citizenship into their constitutions.  But we’re not really unique in the Western hemisphere. If you look at the map, most of the countries that have birthright citizenship are in North and South America.

England used to have very strong common law of birthright citizenship, but over the years they’ve changed that with acts of Parliament. There are also lots of countries in Europe that have changed their rules: Some have gone to more liberal rules; some have gone to more conservative ones. Some argued, for instance, in France that they should get rid of birthright citizenship because it would reduce illegal immigration. The French found out that it created more problems, so now they’re going back to a modified version of birthright citizenship.

How does the debate over birthright citizenship affect long-term hopes for comprehensive immigration reform?

You would think that these calls to change the Constitution would cause people to realize that we have problems with our immigration laws and we should reform them. But it’s seemingly having the opposite effect in some circles. Now people are saying, "Gosh we need a constitutional amendment to fix our immigration laws." I would hope that as people inform themselves about the issues, there would be some more rational debate. It makes no sense to me that you would amend the Constitution--it seems like a sledgehammer for a gnat.

In addition to that, the United States has tremendously benefited from birthright citizenship over the centuries. We have had illegal immigration for more than one hundred years and have always recognized the children of those illegal immigrants as being citizens of our country. We have taxed them, we have drafted them, and we have elected them to public office. We have put them in government jobs, considered them to be citizens just like everyone else, and have taken tremendous advantage of their talents and abilities. This is going to be a sea change in how we do business if we change this rule. We will lose a lot of benefits, [and] we are going to have to set up a bureaucracy, hire thousands of lawyers to adjudicate people’s applications and figure out whether they are citizens or not.

There has been absolutely no attention to the actual implementation. They never talk about how expensive this would be, they never talk about funding it, and they never talk about the practical aspects.

Do you think that people will realize the legal nightmare and give up on it?

I would hope so. We have tremendous budget problems, and creating a new bureaucracy doesn’t seem to be the rational course for Congress to take. It’s not beyond comprehension that they might think, irrationally, that this is going to solve some problem and pass a law without thinking about how it is going to be implemented, and then later on realize they are going to have to spend a lot of money and not go through with it. We’ve seen that happen in the past: They thought it would stop terrorists if they reformed the driver’s license system. They still haven’t funded that, and it caused a tremendous administrative burden. That’s nothing compared to what we are going to see if they change birthright citizenship.

Changing the rule about U.S. birth certificates [would] shock the entire country. It’s going to affect whether you can get a passport, whether you can get a Social Security number, whether you can get a driver’s license. The vast majority of people prove their U.S. citizenship through a birth certificate, and if that is no longer considered proof that you are an American citizen, they are going to have to come up with something else.

Will it stop the illegal immigration problems? No. No more than stopping people from getting driver’s licenses stops terrorists from getting on an airplane. The Christmas bomber didn’t need a driver’s license to get on an airplane. But when people are frustrated with a problem, they look for what appears to be an easy solution without thinking it through. That is what has happened with birthright citizenship. There has been absolutely no attention to the actual implementation. They never talk about how expensive this would be, they never talk about funding it, and they never talk about the practical aspects. Even the states proposing this haven’t talked about how they are going to administer this. They don’t seem to realize that it is tremendously complicated to figure out someone’s immigration status at any point in time. It requires a lot of documentation. Your baby isn’t going to get healthcare until the baby is recognized as a citizen. It’s going to take a year. You can’t get a Social Security number for the child until you prove the child is a citizen. They are going to have to change the whole Social Security verification system, which right now relies on U.S. birth certificates. Basically, there has been no attention to how they would implement it if they did change it, or how costly [it would be].