On Sep 15 2010 by William A. Stock

The New Birthright Citizenship Debate: What’s All the Hubbub About?

As attorneys, we may be somewhat surprised by the current discussions underway in the media as politicians and commentators talk about ways of ending the United States’ 200‐plus‐year recognition that birth in the United States confers United States citizenship on the child, regardless of the immigration status of the parents.

As attorneys, we have a responsibility to consider seriously the strength of their arguments and to participate in the public discussion over how United States citizenship is defined.

Opponents of birthright citizenship, who also generally oppose the United States’ overall openness to immigration, refer pejoratively to the children of mothers without immigration status as “anchor babies” – implying that the children “anchor” the parents to the United States and make it difficult or impossible for the parents to be deported. It is interesting to note at the outset that this position is based on a false understanding of the reality of immigration law: a child born in the United States is of no, or almost no, practical value to the parent as a means of obtaining lawful immigration status in any reasonable timeframe. Before turning to the birthright citizenship debate, therefore, it is helpful to set the stage by considering how little the birth of a United States citizen does to improve the immigration status of the parents.

At present, birth of a child in the United States provides only two immigration benefits, both of them highly speculative. The first benefit occurs immediately, but benefits only to a tiny fraction of illegal immigrants: if the illegal immigrant parent is apprehended and placed into a removal (deportation) proceeding, and if the illegal immigrant parent has been in the United States for at least ten years prior to apprehension without violating any other laws, and if the child would suffer “extreme and exceptionally unusual hardship” by residing in the US without his or her parent, or accompanying his or her parent abroad, the illegal immigrant parent can receive “cancellation of removal” to remain in the United States to avoid that hardship to his or her U.S. citizen child. The strong restrictions on this form of relief mean that many United States citizen children accompany their deported parents abroad every year, often after having lived for years here.

The other benefit is nearly as useless in the short term – any United States citizen, upon reaching age 21, may file a petition requesting that his or her parents be allowed to immigrate to the United States. To take advantage of this provision, however, most immigrant parents not only must elude detection in the United States for 21 years, but must also return to their home countries for at least ten years prior to immigrating legally. With limited exceptions, the restrictions on obtaining permanent residence within the United States through either of these routes will prevent most mothers and fathers from obtaining legal status based on the birth of their child in the United States.

Assuming for a moment, then, the desirability of restricting the acquisition of citizenship to those children born of lawfully present parents (or at least one lawfully present parent), the question remains: how could such a change in the law be accomplished? Proponents of ending birthright citizenship have argued that it can be done by passage of a statute, rather than amending the Constitution, and have based that position on historical and legal arguments.

Our current law on acquisition of citizenship at birth in the United States is the principle of ius soli – the “law of the soil,” that is, the English common law principle that birth within a country made one a citizen of that country, which was generally adopted by the courts and legislatures of the original thirteen colonies and founding states. The application of ius soli to all persons born in the United States was denied by the Supreme Court in the notorious 1857 Dred Scott decision, which refused to recognize the citizenship of an African‐American born into slavery; however, that decision was overturned by statute in the Civil Rights Act of 1866 and again in 1868 by the adoption of the Fourteenth Amendment to the Constitution. It would seem clear, then, that since ius soli was enshrined in the Fourteenth Amendment as a constitutional principle, the only way to exclude the children of parents lacking lawful presence would be to amend the Constitution again.

Not so, argue proponents of the “statutory option”: in their view, the language of the amendment – “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” is open to interpretation. Specifically, they point to the language of the Civil Rights Act of 1866, which was passed shortly before the Fourteenth Amendment was considered by Congress, and which contained a similar provision: “All persons born in the United States, and not subject to any foreign power,” are citizens of the United States. Their position is that the qualifier “subject to the jurisdiction” in the Fourteenth Amendment must be construed similarly to the language used by the same Congress that passed both it and the 1866 Act. Under that interpretation, the Fourteenth Amendment only protects the constitutional right to citizenship of person who are not “subjects of any foreign power,” i.e. citizens of other nations. Under that view, Congress is free to define which, if any, children of citizens of other nations are citizens at birth in the United States.

This argument is problematic when considered as a matter of plain language and Supreme Court precedent. Three counter arguments arise to the interpretation posed by birthright citizenship opponents of the amendment’s plain language. First, the same Congress used different language in the 1866 Act and in the Fourteenth Amendment, and as a general matter of statutory interpretation, when different language is used, courts presume Congress meant something different. Second, the phrase “subject to the jurisdiction” of the United States has a well‐settled meaning in general law: that all civil and criminal laws apply to the person. Under the opponents’ interpretation, then, foreign nationals would have to be considered “outside the jurisdiction” of our laws generally in order for their children not to be citizens.

The third plain language objection is that the interpretation proposed by the opponents would make derivation of United States citizenship dependent upon the citizenship laws of other countries. The amendment applies to the person being born, not to the parents – whether the person being born is being born “subject to the jurisdiction” of the United States. If that is interpreted as a query into whether the person being born is “the subject of a foreign power,” then once a person demonstrates that he or she was born here, that person will also have to show that he or she was not born as the “subject of another foreign power,” that is, prove that he or she did not derive citizenship from his or her parents. If the law of, for example, Mexico, said that a child born outside of Mexico to a Mexican mother becomes a citizen of Mexico, that child would not be a citizen of the United States – but as soon as Mexico changed its law so that children born of Mexican parents outside of Mexico did not obtain Mexican citizenship, that child would have been born in the United State, and not the subject of a foreign power. Given that nations around the world have varying rules about when children of their nationals acquire nationality by birth abroad, at a minimum this interpretation would make adjudication of citizenship claims extremely complicated.

Opponents of interpreting the Fourteenth Amendment have another obstacle to overcome: the Supreme Court’s decision, in 1898, that the son of Chinese immigrants, born in the United States, was a citizen of the United States in spite of the fact that his parents were subjects of China (and were, under a series of laws enacted in the 1880’s and ‘90’s, disqualified from eligibility for naturalization). Opponents point out that the Supreme Court was only faced with the question of whether Wong Kim Ark, born of two parents who were lawfully residing in the United States at the time of his birth, became a citizen; therefore, they argue, the question of whether a child born of unlawful immigrants has never been decided.

While it is true that the Court has never decided that question, it is also true that in numerous cases, the Court has assumed without deciding that children born of non‐United States citizens temporarily in the United States, both lawfully and unlawfully, were natural born citizens of the United States. Indeed, the basic rule announced in granting Wong Kim Ark’s habeas petition has never been challenged: the qualifier “and subject to the jurisdiction thereof” excludes only children of diplomats, children of hostile armies in occupation, and children of Native American tribes (who are independent sovereignties) from the Fourteenth Amendment’s guarantee of birthright citizenship.

On a policy level, the Fourteenth Amendment’s rule has meant that there is a simple, bright‐line test to determine whether a person is a United States citizen: was he or she born in the United States. It has meant that, unlike European countries where the second and third generations of immigrants are often excluded from citizenship in the only home they have known, the United States has a strong record of assimilating the various immigrant groups who have come here over the years. If that rule is to be changed, it will have to be changed by amending the Constitution – which is appropriate, given that such a rule would be such a fundamental change in defining who can be a citizen of the United States.

Published in The Legal Intelligencer September 15, 2010.