“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.”
-- U.S. Const. amend. XIV, § 1
Introduction
Every year, 300,000 to 400,000 children are born to illegal
immigrants in the United States. Despite the foreign citizenship and
illegal status of the parent, the executive branch of the U.S.
government automatically recognizes these children as U.S. citizens upon
birth. The same is true of children born to tourists and other aliens
who are present in the United States in a legal but temporary status.
Since large-scale tourism and mass illegal immigration are relatively
recent phenomena, it is unclear for how long the U.S. government has
followed this practice of automatic “birthright citizenship” without
regard to the duration or legality of the mother’s presence.
Eminent legal scholars and jurists, including Professor Peter Schuck
of Yale Law School and U.S. Court of Appeals Judge Richard Posner, have
questioned whether the 14th Amendment should be read to mandate such a
permissive citizenship policy. Nevertheless, the practice has become the
de facto law of the land without any input from Congress or the
American public.
Advocates of maintaining this citizenship policy argue that the plain
language of the Citizenship Clause of the 14th Amendment protects
automatic birthright citizenship for all children born to illegal and
temporary aliens. However, several legal scholars and political
scientists who have delved into the history of the 14th Amendment have
concluded that “subject to the jurisdiction thereof” has no plain
meaning and that the executive branch’s current, broad application of
the Citizenship Clause may not be warranted.
The overwhelming majority of the world’s countries do not offer
automatic citizenship to everyone born within their borders. Over the
past few decades, many countries that once did so — including Australia,
Ireland, India, New Zealand, the United Kingdom, Malta, and the
Dominican Republic — have repealed those policies. Other countries are
considering changes.
In the United States, both Democrats and Republicans have introduced
legislation aimed at narrowing the application of the Citizenship
Clause. In 1993, Sen. Harry Reid (D-Nev.) introduced legislation that
would limit birthright citizenship to the children of U.S. citizens and
legally resident aliens, and similar bills have been introduced by other
legislators in every Congress since. The current Congress saw the
introduction by Rep. Nathan Deal (R-Ga.) of the “Birthright Citizenship
Act of 2009,” which so far has gathered nearly 100 sponsors.1
This Backgrounder briefly explains some policy concerns that
result from an expansive application of the Citizenship Clause,
highlights recent legislative efforts to change the policy, provides a
historical overview of the development of the 14th Amendment’s
Citizenship Clause, and includes a discussion of how other countries
approach birthright citizenship. The paper concludes that Congress
should clarify the scope of the Citizenship Clause and promote a serious
discussion on whether the United States should automatically confer the
benefits and burdens of U.S. citizenship on the children of aliens
whose presence is temporary or illegal.
Among the findings:
- Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens.
- Of advanced economies, Canada and the United States are the only
countries that grant automatic citizenship to children born to illegal
aliens.
- No European country grants automatic citizenship to children of illegal aliens.
- The global trend is moving away from automatic birthright
citizenship as many countries that once had such policies have ended
them in recent decades.
- 14th Amendment history seems to indicate that the Citizenship Clause
was never intended to benefit illegal aliens nor legal foreign visitors
temporarily present in the United States.
- The U.S. Supreme Court has held that the U.S.-born children of
permanent resident aliens are covered by the Citizenship Clause, but the
Court has never decided whether the same rule applies to the children
of aliens whose presence in the United States is temporary or illegal.
- Some eminent scholars and jurists have concluded that it is within
the power of Congress to define the scope of the Citizenship Clause
through legislation and that birthright citizenship for the children of
temporary visitors and illegal aliens could likely be abolished by
statute without amending the Constitution.
The international findings in this report are the result of
direct communication with foreign government officials and analysis of
relevant foreign law. It is the most current research on global
birthright citizenship data.
The Impact of Birthright Citizenship
Between 300,000 and 400,000 children are born to illegal immigrants
in the United States every year. Put another way, as many as one out of
10 births in the United States is to an illegal immigrant mother.2
All of these children are considered by the executive branch of the
U.S. government to be U.S. citizens who enjoy the same rights and are
entitled to the same benefits as the children of U.S. citizens.
The population of U.S.-born children with illegal alien parents has
expanded rapidly in recent years from 2.3 million in 2003 to 4 million
in 2008; since these figures do not include children who are 18 years of
age or older nor those who are married, the actual figure is somewhat
larger.3
The two citizenship benefits that have drawn the most attention in
the birthright citizenship debate are, first, food assistance and other
welfare benefits to which a family of illegal aliens would not otherwise
have access, and second, the ability of the child when he grows up to
legalize his parents, and also to bring into the United States his
foreign-born spouse and any foreign-born siblings. The sponsored spouse
can, in turn, sponsor her own foreign-born parents and siblings, and the
siblings can, in turn, sponsor their own foreign-born spouses, and so
on, generating a virtually never-ending and always-expanding migration
chain.
Because having a child on U.S. soil can cement an immigrant’s
presence in the United States, provide access to welfare benefits, and
ultimately initiate chain migration of the child’s extended family and
in-laws, children born to illegal aliens and legal temporary visitors
are sometimes referred to as “anchor babies.” These benefits have
contributed to the growth of a “birth tourism” industry.
The voices calling for a change to the current application of the
Citizenship Clause of the 14th Amendment are quite diverse and are not
limited to activists and policymakers. The influential Circuit Court
Judge Richard Posner held in a recent court decision that the policy of
granting automatic birthright citizenship for children of illegal and
temporary aliens is one that “Congress should rethink” and that the
United States “should not be encouraging foreigners to come to the
United States solely to enable them to confer U.S. citizenship on their
future children.”4
Benefits. Most benefits Americans would regard as “welfare”
are not accessible to illegal immigrants. However, illegal immigrants
can obtain welfare benefits such as Medicaid and food stamps on behalf
of their U.S.-born children. Many of the welfare costs associated with
illegal immigration, therefore, are due to the current birthright
citizenship policy. Put another way, greater efforts at barring illegal
aliens from federal welfare programs will not significantly reduce costs
because their citizen children can continue to access the benefits.
Nationwide, 40 percent of illegal alien-headed households receive some
type of welfare. In some states, the rate is higher: in New York, 49
percent receive welfare; in California, the rate is 48 percent; in
Texas, it is 44 percent; and in Georgia, 42 percent of illegal
alien-headed households receive welfare.5 Only 19 percent of households headed by native-born citizens make use of a major welfare program.
Of course, states offer additional welfare benefits as well. Los
Angeles County Supervisor Michael D. Antonovich recently released data
from the Los Angeles County Department of Public Social Services
indicating that children of illegal aliens in Los Angeles Country
received $50 million in welfare benefits during the month of February
2010 alone. The report estimates that 23 percent of all CALWORKS and
food stamp issuances in Los Angeles County are to illegal immigrant
parents who collect on their U.S.-born children’s behalf. The supervisor
estimates that illegal immigration and birthright citizenship cost
taxpayers in Los Angeles County over $1 billion annually, not including
education costs.6
Despite taxpayers’ assistance, approximately 59 percent of illegal
aliens and their U.S.-born children live in or near poverty. In total,
21.5 million immigrants (legal and illegal) and their young children
live in or near poverty. In California, Arizona, Texas, and Colorado
illegal aliens and their U.S.-born children account for roughly a fifth
of the those in poverty.7
Ultimately, treating the U.S.-born children of illegal aliens as
citizens has the statistical effect of increasing the percentage of U.S.
citizens living in poverty.
It is important to remember that births to illegal aliens are not
spread evenly throughout the United States. Some states, particularly
those closer to the southern border, carry a much larger burden.
According to the Texas Health and Human Services Commission, between
60,000 to 65,000 babies are born to illegal aliens in Texas every year,
representing about 16 percent of total births statewide. The report
estimates that between 2001 and 2009, births to illegal immigrant women
totaled 542,152 in Texas alone.8
Chain Migration. A child born to illegal aliens in the United
States can initiate a chain of immigration when he reaches the age of 18
and can sponsor an overseas spouse and unmarried children of his own.
When he turns 21, he can also sponsor his parents and any brothers and
sisters.9
Family-sponsored immigration accounts for most of the nation’s growth
in immigration levels. Of the 1,130,818 immigrants who were granted
legal permanent residency in 2009, a total of 747,413 (or, 66.1 percent)
were family-sponsored immigrants. A change to U.S. immigration laws in
the late 1950s — one that allowed for the admission of extended family
members outside the nuclear family — resulted in the average annual flow
increasing from 250,000 then, to over 1 million today. This number
continues to rise every year because of the ever-expanding migration
chains that operate independently of any economic downturns or labor
needs.10
Although automatic and universal birthright citizenship is not the only
contributor to chain migration, ending it would prevent some of this
explosive growth.
The issue of birthright citizenship for the children of aliens who
have not been admitted for permanent residence cannot be resolved in
isolation from other immigration issues. For example, politicians on
both sides of the aisle regularly call for an increase in temporary
workers, but the economic and social impact of children born to these
workers while they are in the United States is never part of the
discussion. Under any large-scale guestworker program, it is likely that
tens of thousands of children would be born on U.S. soil. If the
guestworker does not depart when his work visa expires, he becomes an
illegal alien and is subject to deportation. But immigration authorities
cannot deport the guestworker’s citizen child along with the
overstaying guestworker. The result is that the guestworker makes the
case for indefinite stay based on the principle of “keeping families
together” — an argument that is often successful at stopping an alien’s
deportation. Because of birthright citizenship, what started as a policy
to bring in laborers on a temporary basis can become yet another
channel for permanent immigration. This is one of the reasons why some
have said that “there is often nothing more permanent than a temporary
worker.”11
Birth Tourism. The significant benefits of U.S. citizenship
and the executive branch’s permissive birthright citizenship policies
have become a magnet for those seeking to add a U.S. passport holder to
their family. An entire industry of “birth tourism” has been created and
the phenomenon of pregnant women traveling (legally) to the United
States specifically for the purpose of giving birth on U.S. soil has
grown largely without any debate in Congress or the consent of the
public.
“It’s easy. If you register the birth, it’s automatic that your baby
can get an American passport,” said Kim Jeong Yeon, a Korean woman who
traveled to the United States on a tourist visa while six months
pregnant.12
Like many other women, Kim spent thousands of dollars to have a company
arrange the travel. “If they could afford it, all my friends would go
to the United States to have their babies,” she said.
According to Selin Burcuoglu, a Turkish woman who traveled to the
United States to give birth last year, the process was easy: “We found a
company on the Internet and decided to go to Austin for our child’s
birth. It was incredibly professional. They organized everything for me.
I had no problem adjusting and I had an excellent birth. I don’t want
her to deal with visa issues — American citizenship has so many
advantages.”13
Birth tourism can be a lucrative business for immigrants who
facilitate the travel and birthing process for their former countrymen.
Turkish doctors, hotel owners, and immigrant families in the United
States have assembled what amounts to a birth-tourism assembly line,
reportedly arranging the U.S. birth of 12,000 Turkish children since
2003. The Turkish-owned Marmara Hotel group offers a “birth tourism
package” that includes accommodations at their Manhattan branch. “We
hosted 15 families last year,” said Nur Ercan Mağden, head manager of
The Marmara Manhattan, adding that the cost was $45,000 each.14
Similarly, the Tucson Medical Center (TMC) in Arizona offers a “birth
package” to expectant mothers and actively recruits in Mexico.
Expectant mothers can schedule a Caesarean or simply arrive a few weeks
before their due date. The cost reportedly ranges from $2,300 to $4,600
and includes a hospital stay, exams, and a massage. Additional children
trigger a surcharge of $500.
“These are families with a lot of money, and some arrive on private
jets and are picked up by an ambulance and brought here,” said Shawn
Page, TMC’s administrator of international services and relations.15
In California, three Chinese-owned “baby care centers” offer
expectant mothers a place to give birth to an American citizen for a fee
of $14,750, which includes shopping and sightseeing trips. For a $35
daily fee, television, internet, and three meals are provided. “We don’t
encourage moms to break the law — just to take advantage of it,”
explains Robert Zhou, the agency’s owner. Zhou says that he and his wife
have helped up to 600 women give birth in the United States within the
last five years. In fact, they started the business after traveling to
the United States to have a child of their own. Zhou explains that the
number of agencies like his has soared in the past five years.16
Zhou believes that a cheaper education is often a motivating factor
and his pitch to prospective clients includes the notion that public
education in the United States is “free.” One of his clients, Christina
Chuo, explains that her parents “paid a huge amount of money for their
education” in the United States because they were foreign students;
having an American citizen child permits her child to acquire the same
education at a lower tuition. She also noted that she and her husband
were not interested in permanently immigrating to the United States,
“except, perhaps, when they retire.”17
As discussion about limiting birthright citizenship heats up in the
United States, some foreign countries are concerned about possible
changes. The Nigerian media, for example, recently published an article
titled, “American Agitations Threaten a Nigerian Practice.” The practice
referred to is that of Nigerians traveling to the United States to have
a child — a practice that, according to the newspaper, is “spreading so
fast that it is close to becoming an obsession.”18
The U.S. State Department is not permitted to deny a woman a
temporary visitor visa simply because she is pregnant and the legal
document she obtains means she is not likely to be stopped at the
border.19
Consequently, the practice of granting automatic birthright citizenship
allows a seemingly temporary admission of one foreign visitor to result
in a permanent increase in immigration and grants of citizenship that
were not necessarily contemplated or welcomed by the American public.
Add to this the fact that immigration authorities are less likely to
deport a visitor who overstays their permitted time if they have a U.S.
citizen child, and one ends up with an immigration policy quite
different from that which was originally intended.
The birth tourism industry illustrates how the executive branch’s
permissive birthright citizenship policies can have the effect of
transferring control over the nation’s immigration policy from the
American people to foreigners.
Congress Considers Changes
Over the last few decades, many of those few countries with automatic
birthright citizenship policies have changed their law as a means of
discouraging illegal immigration and to give citizens more control over
the future of their societies. The countries that have ended the
practice in recent years include the United Kingdom, Australia, Ireland,
India, Malta, New Zealand, and the Dominican Republic. Barbados and
Antigua & Barbuda may also be ending the practice as the nations
look for ways to cope with illegal immigration.
In the United States, birthright citizenship has been the subject of
congressional hearings and proposed legislation for at least the past
two decades.
The effort to end automatic birthright citizenship in the United
States has come from across the political spectrum. Sen. Harry Reid
(D-Nev.) introduced legislation to end automatic birthright citizenship
in 1993, the Republican Party made the end of automatic birthright
citizenship part of its 1996 platform, and the current Congress saw the
introduction of the “Birthright Citizenship Act of 2009” by Rep. Nathan
Deal (R-Ga.). The current bill has attracted nearly 100 co-sponsors.20 Since 1993, legislation to end birthright citizenship has been introduced in each Congress.21
The latest legislation would limit birthright citizenship to persons
born in the United States to at least one parent who is either (1) a
citizen or national of the United States, (2) an alien lawfully admitted
for permanent residence in the United States whose residence is in the
United States; or (3) an alien performing active service in the armed
forces. It is an effort to define who is “subject to the jurisdiction”
of the United States, a clause found in the 14th Amendment of the U.S.
Constitution that dictates the scope of birthright citizenship, as
discussed later.
What Law Requires Birthright Citizenship? Is automatic
birthright citizenship for children of all legal and illegal aliens
expressly required by the U.S. Constitution? On its face, the answer is
“no.” No language in the Constitution specifically addresses how the
children of foreigners must be dealt with in regards to citizenship. The
14th Amendment confers citizenship through “naturalization” or by birth
to persons “subject to the jurisdiction” of the United States, but
provides no guidance on when an alien is to be regarded as subject to
U.S. jurisdiction. The next question, then, is whether any statute
enacted by Congress specifically directs the granting of citizenship to
children born in the United States to illegal aliens. Again, the answer
is “no.” The executive branch’s birthright citizenship policy is not
based on any federal regulation. One might say that the practice has
become policy without becoming law.
Because the current policy has not been taken through the standard
legislative or regulatory processes, it has become official practice
without any input from the American public or their elected
representatives. A recent survey found that only 33 percent of Americans
support the practice of granting automatic citizenship to children born
to illegal aliens.22
Jus Sanguinis and Jus Soli. Countries generally adopt one of two systems for granting citizenship to children — jus sanguinis or jus soli. Most countries practice jus sanguinis,
also known as citizenship by descent, or citizenship by “right of
blood.” Under this system, a child acquires the parent’s citizenship
upon birth. This threshold varies from country to country; for example,
some countries will determine the child’s citizenship based on the
father’s citizenship, while others will look to the mother’s
citizenship. Countries practicing jus sanguinis will not
automatically grant citizenship to a child born within their borders if
that child is born to parents who are foreigners. This would be true of
immigrants who have entered both legally and illegally. The child
maintains the parent’s foreign citizenship.
A small number of countries practice jus soli, or citizenship
by “right of soil.” Under this system, a child automatically acquires
the citizenship of the country in which the birth takes place. This
citizenship is generally granted without conditions, and the citizenship
and immigration status of the parents is inconsequential. Only 30 of
the world’s 194 countries practice jus soli. The United States is one of the few countries with this system.
Although the United States is practicing jus soli when it
grants automatic citizenship to children born to illegal immigrants,
historians generally agree that the two citizenship principles that have
vied for supremacy in Anglo-American law are that of ascription and
consent — whether citizenship is ascribed to a person based on
circumstances outside his control or whether there must be some form of
consent by the individual and the state.23
Some scholars have written that the United States has adopted elements
of both ascription and consent, without ever adequately reconciling them
into a practical, unified, or effective policy — something that must
occur if the United States wishes to successfully address complex issues
involving immigration and citizenship.
From Subjectship to Citizenship. Political historians note
that the founders the United States sought a citizenship policy
different from that found in British common law. The phrase “birthright
citizenship” is derived from “birthright subjectship,” a phrase that
described the perpetual allegiance to the King of England owed in
medieval times by anyone born within his realm. According to Professor
Edward J. Erler, Professor of Political Science at California State
University:
“The framers of the Constitution were, of course,
well-versed in the British common law, having learned its essential
principles from William Blackstone’s Commentaries on the Laws of England.
As such, they knew that the very concept of citizenship was unknown in
British common law. Blackstone speaks only of ‘birthright subjectship’
or ‘birthright allegiance,’ never using the terms citizen or
citizenship. The idea of birthright subjectship is derived from
feudal law. It is the relation of master and servant; all who are born
within the protection of the king owe perpetual allegiance as a ‘debt of
gratitude.’ According to Blackstone, this debt is ‘intrinsic’ and
‘cannot be forfeited, cancelled, or altered.’ Birthright subjectship
under the common law is thus the doctrine of perpetual allegiance.”24
Like other historians, Erler notes that in the Declaration of
Independence and the Constitution the Founders rejected the medieval
concept of ascriptive “subjectship” in favor of a modern “citizenship”
based on the consent of the governed.25
The liberty sought by the Founders required citizenship, rather than
subjectship, as only the former allowed the individual to leave his
nation at any time of his choosing — a freedom not possible under
British common law. As Blackstone explained, the “natural-born subject
of one prince cannot by any act of his own, no, not by swearing
allegiance to another, put off or discharge his natural allegiance to
the former… and it is unreasonable that, by such voluntary act of his
own, he should be able at pleasure to unloose those bands, by which he
is connected to his natural prince.”26 It was this very type of subjugation that the Founders did not want to bring to the new government.27
The movement from medieval ascription to modern consent was explained
by Peter H. Schuck and Rogers M. Smith in their influential book Citizenship Without Consent:
“[B]irthright citizenship originated as a distinctively
feudal status intimately linked to medieval notions of sovereignty,
legal personality, and allegiance. At a conceptual level, then, it was
fundamentally opposed to the consensual assumptions that guided the
political handiwork of 1776 and 1787. In a polity whose chief organizing
principle was and is the liberal, individualistic idea of consent, mere
birth within a nation’s border seems to be an anomalous, inadequate
measure or expression of an individual’s consent to its rule and a
decidedly crude indicator of the nation’s consent to the individual’s
admission to political membership.”28
Schuck and Smith argue that a constitutional commitment to
“citizenship based on mutual consent” is not only in line with the
historical development of the United States but that it is also
“constitutionally permissible and democratically legitimate.”29
Still, the exact perimeters of U.S. citizenship were never fully
defined during the early years of the nation’s founding and
consensualism was never fully embraced, in part because a complete
resolution of the issue would have raised sensitive questions about
whether state or national citizenship was primary, whether states had to
recognize citizenship granted by other states, and the issue of state
and federal authority, generally.30
At the most basic level, Americans were quite obviously committed to
the principles of a consensual government and also the right of
expatriation — particularly since the British continued to demand the
allegiance of their former subjects well into the nineteenth century.
The ascriptive approach to citizenship simply did not comport with the
purpose behind the American Revolution.31
Nevertheless, it was not until the American Civil War that the concept of citizenship acquired some much-needed clarification.
The Citizenship Clause of the 14th Amendment
Before the 14th Amendment, citizenship was granted by states, and
subsequently recognized by the federal government. Although the 13th
Amendment officially ended slavery in 1865, it was not sufficient for
the purpose of making freed slaves citizens of the United States. In the
1857 case Dred Scott v. Sandford, the Supreme Court held that blacks, even those freed from slavery, were not citizens of the United States.32
In the aftermath of the Civil War, some states were preventing freed
slaves form gaining federal citizenship by denying state citizenship.
“Black Codes” passed into law by some states denied many other civil
rights.
These injustices led to the Civil Rights Act of 1866, which was aimed, in part, at overruling the Dred Scott
decision and which laid the groundwork for enactment of the 14th
Amendment two years later. The Act declared, among other things:
“That 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;”33
Two years later in 1868, the Citizenship Clause of the 14th Amendment
would be closely patterned on the citizenship declaration of the 1866
Act. Both intended to exclude from birthright citizenship at least some
U.S.-born persons where a competing claim of subjectship or citizenship
existed. The 1866 Act drew the line by excluding persons “subject to any
foreign power,” while the 14th Amendment included only persons “subject
to the jurisdiction” of the United States.34 In either case what was being weighed was competing claims to the future allegiance of the child.35
“Subject to the Jurisdiction Thereof.” The first sentence of
Section 1 of the 14th Amendment of the U.S. Constitution, also known as
the Citizenship Clause, reads as follows:
“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and the State wherein they reside.”36
This clause contains two requirements for obtaining U.S. citizenship
by birth: (1) the birth must have occurred within the United States; and
(2) the person born must be subject to the jurisdiction of the United
States. The second requirement imposes a consensual qualification to
birthright citizenship.37
Advocates of granting automatic citizenship to children of illegal
aliens almost always focus only on the first requirement, arguing birth
on U.S. soil, alone, guarantees U.S. citizenship.38
These advocates also argue that “subject to the jurisdiction” simply
means being susceptible to police authority (i.e. being required to
follow laws and pay fines for violations). But such an interpretation
creates a redundancy in the 14th Amendment, as all people born in the
United States are subject to the laws of the land. Accepting the premise
that “subject to the jurisdiction thereof” simply means being “subject
to police power” turns a critical and carefully-written portion of the
Citizenship Clause into a redundancy. Unquestionably, basic statutory
interpretation requires one to view each clause as a distinct and
separate requirement, and no honest jurist would read a redundancy into a
statute, much less a constitutional amendment.39
The inquiry, then, is focused on the intent of those who wrote the
clause and whether a child born in the United States to an illegal alien
is a person who is “subject to the jurisdiction” of the United States,
and consequently an automatic citizen of the country. No one doubts that
the main purpose of the 14th Amendment was to ensure that freed slaves
would be recognized as U.S. citizens. Nevertheless, some argue that
children of illegal aliens should enjoy the same privilege. But when the
14th Amendment was enacted, there were few limits on immigration and
very few persons in the United States would have been residing here
illegally. Moreover, given the costs and risks of long-distance
transportation, tourists and other temporary visitors were limited in
numbers. There is simply no direct evidence that Congress wished to
confer citizenship on the children of temporary or illegal visitors, but
there is some evidence that they did not.
The most informative source on the intent of Congress is the Congressional Globe, the earlier version of today’s Congressional Record.
The development of the language that made it into the 14th Amendment is
revealing. At the outset, the authors of the 1866 Act and the 14th
Amendment understood that a certain amount of respect or allegiance to
the United States was expected of all persons who found themselves
within our borders, even from foreigners visiting temporarily, and that
this alone would not justify a grant of citizenship. During debate on
the 1866 Act, Sen. Lyman Trumbull (R-Ill.) explained that his goal was
“to make citizens of everybody born in the United States who owe
allegiance to the United States,” but noted a lack of clarity in such a
phrasing, explaining:
“I thought that might perhaps be the best form in which
to put the amendment at one time, ‘That all persons born in the United
States and owing allegiance thereto are hereby declared to be citizens;’
but upon investigation it was found that a sort of allegiance was due
to the country from persons temporarily resident in it whom we would
have no right to make citizens, and that that form would not answer.”40
The “sort of allegiance” owed by an alien “temporarily resident” in
the United States, legally or illegally, would seem to include a duty to
follow basic laws, but not the duty of loyalty demanded of a citizen.
While advocates for the rights of illegal aliens argue that this duty to
obey our laws (and an alien’s susceptibility to being arrested for a
violation of our laws) makes an alien “subject to the jurisdiction” of
the United States, that was not the view of those who framed the
Citizenship Clause. In the 1866 Act, any such interpretation was
precluded by using the phrase “not subject to any foreign power.”
Soon thereafter, the phrase “not subject to any foreign power” would
reappear as “subject to the jurisdiction thereof” in the 14th Amendment.
Thus, while the language of the 1866 Act distinguished aliens on the
basis of their continuing obligation of allegiance to a foreign power,
the 14th Amendment focused mainly on the alien’s degree of allegiance to
the United States. However, in both cases, the purpose was to avoid the
granting of citizenship to people with only a temporary sort of
allegiance. Opposition to granting citizenship to individuals subject to
a foreign power was strong throughout the Senate.41
It does seem that the framers of the Citizenship Clause had no
intention of establishing a universal rule of automatic birthright
citizenship.42
On May 30, 1866, Sen. Jacob Howard (R-Mich.) initiated debate on a
resolution that would become the Citizenship Clause of the 14th
Amendment. In defining citizenship by birth, Sen. Howard explained:
“This will not, of course, include persons born in the
United States who are foreigners, aliens, who belong to the families of
ambassadors or foreign ministers accredited to the Government of the
United States, but will include every other class of persons. It settles
the great question of citizenship and removes all doubt as to what
persons are or are not citizens of the United States.”43
Whether Sen. Howard thought that the “jurisdiction” clause would
exclude only the children of diplomats or some larger category of
“foreigners” has been much debated. In fact neither side of the debate
can rely exclusively on Sen. Howard’s statement since the statement (or
the reporting of the statement) is grammatically incomplete, and one’s
interpretation depends on how one chooses to complete the grammar. When
the senator said…
“This will not, of course, include persons born in the
United States who are foreigners, aliens, who belong to the families of
ambassadors or foreign ministers…”
…he may have meant either:
(1) “This will not, of course, include persons born in
the United States who are foreigners, aliens, [or those] who belong to
the families of ambassadors or foreign ministers…”
…or:
(2) “This will not, of course, include persons born in
the United States who are foreigners [or] aliens who belong to the
families of ambassadors or foreign ministers…”
The former interpretation would support the narrative that children
born to illegal aliens are not considered citizens, while the latter
would deny U.S. citizenship to only those born to family of visiting
government officials. Since we cannot know for sure what Sen. Howard
meant to say, the most one can conclude is that he did not expect that
every U.S.-born child of an alien would automatically be made a citizen
by the 14th Amendment. Interestingly, as noted below, the Supreme Court,
even when expanding the scope of birthright citizenship, has assumed
the first and more exclusive reading.
There is a better record of how the sponsors expected the 14th
Amendment to apply to tribal Indians. Sen. Trumbull, sponsor of the 1866
Act, offered his definition of “subject to the jurisdiction:”
“What do we mean by ‘subject to the jurisdiction of the
United States?’ Not owing allegiance to anybody else. That is what it
means.”44
Sen. Trumbull went on to explain how this clause might apply to American Indians:
“It cannot be said of any Indian who owes allegiance,
partial allegiance if you please, to some other Government that he is
‘subject to the jurisdiction of the United States.’”45
Sen. Trumbull’s explanation hearkens back to the 1866 Act and its
exclusion of persons “subject to any foreign power.” Today, it cannot be
denied that an illegal alien is, under law, a citizen of a foreign
country and therefore subject to that country’s jurisdiction. An illegal
alien owes at least some amount of allegiance to their home country, if
not complete allegiance. They are not under any sense of the law a
citizen of the United States. As explained by Thomas Jefferson: “Aliens
are the subjects of a foreign power.”46
Although, as a result of federal statutory law, all native-born Indians
are regarded as citizens today, at the time of the 14th Amendment
Indian tribes were treated as foreign powers, and members of the tribe
were presumed to owe their first allegiance to the tribe. There was no
need to refer specifically to Indian tribes in the Amendment because it
simply stood to reason that, for an Indian, mere presence in the United
States could not be treated as a transfer of allegiance from his tribe
to the United States. Query whether, in the 21st century, it stands to
reason that a French tourist who gives premature birth to a child during
a two-week visit to Disney World should, by virtue of her presence in
Orlando, be regarded as having forsaken her allegiance to France.
If the question of “jurisdiction” boils down to one of allegiance,
and under U.S. jurisprudence allegiance is a voluntary association, on
what basis can a newborn child be found to have chosen an allegiance to
his parent’s country over allegiance to the United States, or vice
versa? It was understood by the authors of the 14th Amendment that
jurisdiction as to the child would be imputed from the status of the
parents. Sen. Reverdy Johnson (D-Md.) explained that parents must be
“subject to the authority” of the United States if their children born
here are to be classified as having acquired the status of U.S. citizen:
“Now, all that this amendment provides is, that all
persons born in the United States and not subject to some foreign
Power…shall be considered as citizens of the United States. … [T]he
amendment says that citizenship may depend on birth, and I know of no
better way to give rise to citizenship than the fact of birth within the
territory of the United States, born of parents who at the time were subject to the authority of the United States.”47 (emphasis added)
Are illegal aliens subject to the authority of the United States? Not
in the way contemplated by authors of the 14th Amendment. As explained
earlier, the authors of the 14th Amendment explained that being subject
to the jurisdiction of the United States means not owing allegiance to
anybody else.
Without asking immigrants themselves, we cannot know where their
allegiances lie, but in the case of Mexican immigrants, who constitute
nearly 60 percent of the illegal alien population in the United States,48
we do know what their government thinks. It appears these individuals
owe at least partial, if not complete allegiance to the government of
Mexico.
For example, in its recent amicus brief to the U.S. District Court
overseeing the injunction hearing on Arizona’s anti-illegal immigration
bill S.B. 1070, the government of Mexico refers to Mexican illegal
aliens as “its people” and “its citizens.”49 This is not a new perspective.
Former Mexican President Vicente Fox appointed one Juan Hernandez to
head a governmental agency called the Institute for Mexicans Abroad.
According to Mr. Hernandez’s own website, the agency’s principal
objective is to “serve and dignify the 24 million whom President Fox has
called heroes — the countrymen who live in foreign lands.”50
Mr. Hernandez explains: “We are betting on that the Mexican-American
population in the United States…will think ‘Mexico first’ … But now I
want the third generation, the seventh generation, I want them all to
think ‘Mexico first.’”51
Ultimately, in assessing the statements found in the Congressional Globe,
it is important to remember that floor statements said during debate in
the House or Senate are not law; it is only the language of the law
itself upon which Congress has agreed. Because the “subject to the
jurisdiction” language can be, and has been, susceptible to so many
interpretations, it may be prudent for the current Congress to clarify,
by statute, the full scope of the 14th Amendment’s Citizenship Clause.
If Congress does not act first, there is a chance that someday the
courts, with nothing more than these floor statements to guide them,
will be forced to clarify what is now uncertain. It is arguably better
for Congress to determine the proper scope of the 14th Amendment based
on careful deliberations, rather than having so important a decision
rendered by the judiciary based on a handful of 19th century floor
statements.
The Supreme Court Weighs In
The U.S. Supreme Court has shed some light on the meaning of “subject
to the jurisdiction thereof” in the years that followed the passage of
the 14th Amendment. The first definition from the Supreme Court appeared
in 1873 in the Slaughter-House Cases, a series of cases not dealing specifically with birthright citizenship. Here, the Court explained:
“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.”52
This interpretation is consistent with Sen. Howard’s floor statement
on the scope of jurisdiction, discussed above, as not including
foreigners, or aliens, or children born to foreign government officials. Even the dissenting justices agreed with this restrictive interpretation.
The Supreme Court addressed “subject to the jurisdiction” again in 1884 in Elk v. Wilkins,
a case that focused on the citizenship of an American Indian who had
been born into a tribe but had later severed his tribal ties. Here, the
Court emphasized that a person not born into U.S. citizenship could not
make himself “subject to the jurisdiction” of the United States without
the consent of the United States. According to the Court: “no one can
become a citizen of a nation without its consent.”53
Specifically, the Court held that although the plaintiff was born in
the United States, he was not granted U.S. citizenship through any
treaty or statute and was consequently not subject to the jurisdiction
of the United States under the 14th Amendment. The Court defined the
jurisdictional requirement of the Citizenship Clause as requiring a
person to be:
“…not merely subject in some respect or degree to the
jurisdiction of the United States, but completely subject to their
political jurisdiction, and owing them direct and immediate allegiance.”54
The Court also explained that Indians born in tribes geographically
located within the United States are “no more ‘born in the United States
and subject to the jurisdiction thereof’…than the children of subjects
of any foreign government born within” the United States “or the
children born within the United States, of ambassadors or other public
ministers of foreign nations.”55
This holding is clearly damaging to those who argue the 14th
Amendment grants citizenship to children born to illegal aliens because
an illegal alien is certainly a subject of a foreign government. A child
born to such an individual is not, according to the Elk Court,
subject to the jurisdiction of the United States. Additionally, this
holding is consistent with the interpretation of Sen. Howard’s floor
statement that the 14th Amendment denies citizenship not only to
children born to parents who are visiting foreign diplomats, but also to
children born to foreigners, generally.
Another Supreme Court holding that is often cited is the 1898 case United States v. Wong Kim Ark
which held that Wong Kim Ark, a child born in the United States to
legal resident Chinese immigrants, was a birthright U.S. citizen under
the 14th Amendment. According to the Court:
“[A] child born in the United States, of parents of
Chinese descent, who at the time of his birth, are subjects of the
emperor of China, but have a permanent domicile and residence in the United States,
and… are not employed in any diplomatic or official capacity under the
Emperor of China, becomes at the time of his birth a citizen of the
United States.”56 (emphasis added)
The Court gave little weight to the consensualist attitudes shown in the Congressional Globe
floor statements and based its decision instead on a theory that the
14th Amendment was simply a codification of English common law, citing
the English jurists William Blackstone and Edward Coke. Given the Wong Kim Ark
Court’s reliance on English common law, it is worth observing that
Justice Story, who years earlier held that U.S. citizenship law derives
from English common law, wrote the following in his famous Conflict of Laws treatise:
“A reasonable qualification of the [English birthright
citizenship] rule would seem to be that it should not apply to children
of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business.”57
In concluding that “subject to the jurisdiction thereof” in the
Citizenship Clause should be very broadly construed, the Court in Wong Kim Ark
held that it simply means the same thing as “within the jurisdiction,” a
phrase found in the Equal Protection Clause of the 14th Amendment:
“It is impossible to construe the words ‘subject to the
jurisdiction thereof,’ in the opening sentence [of the 14th Amendment],
as less comprehensive than the words ‘within its jurisdiction,’ in the
concluding sentence of the same section; or to hold that persons ‘within
the jurisdiction’ of one of the States of the Union are not ‘subject to
the jurisdiction of the United States.’”58
Setting aside some of its own earlier commentary, the Court surmised
that the “real object” of the Citizenship Clause “would appear to have
been to exclude, by the fewest and fittest words… two classes of cases —
children born of alien enemies in hostile occupation, and children of
diplomatic representatives of a foreign State.”59
The strongly worded dissent reiterated much of the earlier precedent, explaining:
“To be ‘completely subject’ to the political jurisdiction
of the United States is to be in no respect or degree subject to the
political jurisdiction of any other government.
“Now I take it that the children of aliens, whose parents have not
only not renounced their allegiance to their native country, but are
forbidden by its system of government, as well as by its positive laws,
from doing so, and are not permitted to acquire another citizenship by
the laws of the country into which they come, must necessarily remain
themselves subject to the same sovereignty as their parents, and cannot,
in the nature of things, be, any more than their parents, completely
subject to the jurisdiction of such other country. … The Fourteenth
Amendment was not designed to accord citizenship to persons so situated
and to cut off the legislative power from dealing with the subject. … It
is not to be admitted that the children of persons so situated become
citizens by the accident of birth.”60
Some scholars argue that the dissent is more aligned with the
established precedent and that the allegiance of the child in this case
should have followed that of his parents, as was held to be the rule in Elk.61
Other scholars feel that Congress probably did intend to extend
citizenship to individuals like Wong Kim Ark but only with the
expectation that the actual effect of such an application would be
trivial.62
The only 20th century case that touches on the 14th Amendment’s application to illegal aliens is the 1982 case Plyler v. Doe,
which held that the denying of public-school admission to illegal-alien
children would violate the Equal Protection Clause of the 14th
Amendment. Although the case did not require the Court to decide the
scope of birthright citizenship, Justice William Brennan, writing for a
split 5-4 Court, added an endnote that cited language from Wong Kim Ark and added the following language:
“[N]o plausible distinction with respect to Fourteenth
Amendment ‘jurisdiction’ can be drawn between resident aliens whose
entry into the United States was lawful, and resident aliens whose entry
was unlawful.”63
Of course, policymakers have made plenty of distinctions as between
the two groups. According to University of Texas law professor Lino A.
Graglia, Justice Brennan seems to have based his reasoning on the
mistaken premise that Wong Kim Ark decided the case of illegal aliens.64
Ultimately, this dictum hardly represents an investigation into the
appropriate scope of the 14th Amendment’s Citizenship Clause and it does
not bind any subsequent court. As Yale Law professor Peter Schuck has
written: “no court has ever squarely decided the question of the status
under the Citizenship Clause of the native-born children of illegal and
nonimmigrant aliens.”65
While the Slaughter-House Cases, Elk v. Wilkins, Wong Kim Ark, and Plyler v. Doe
provide food for thought and fodder for debate, it remains to be seen
whether a 21st century court will be more inclined to follow the
reasoning of Elk or the reasoning of Wong Kim Ark if and
when faced with having to make an unprecedented decision about whether
the U.S. Constitution imposes U.S. citizenship on the U.S.-born children
of aliens who have been admitted only for “temporary purposes” or who
have not been admitted at all.
What About the Plenary Power Doctrine?
If Congress were to declare an end to birthright citizenship for the
U.S.-born children of aliens not admitted to permanent residence, the
law would certainly be challenged in court, likely forcing the Supreme
Court to render a final decision. In addition to weighing its own 14th
Amendment jurisprudence, the Court would have to address the plenary
power doctrine which holds that the political branches — the legislative
and the executive, rather than the judicial — have sole power to
regulate immigration as a basic attribute of sovereignty.66
As Justice Felix Frankfurter, an immigrant himself, once held in the defense of the plenary power doctrine:
“Though as a matter of political outlook and economic
need this country has traditionally welcomed aliens to come to its
shores, it has done so exclusively as a matter of political outlook and
national self-interest. This policy has been a political policy,
belonging to the political branch of the Government wholly outside the
concern and the competence of the Judiciary… In recognizing this power
and this responsibility of Congress, one does not in the remotest degree
align oneself with fears unworthy of the American spirit or with
hostility to the bracing air of the free spirit. One merely recognizes
that the place to resist unwise or cruel legislation touching aliens is
the Congress, not this Court.”67
Advocates of maintaining automatic birthright citizenship for illegal
aliens argue that a constitutional amendment is necessary to change the
current policy. However, the ambiguities surrounding the phrase
“subject to the jurisdiction thereof” and the scope of Congress’s
plenary power to regulate immigration have caused historians and legal
scholars to conclude that Congress itself has the power to interpret the
phrase and to impose reasonable limits on its application. As explained
by Professor Erler:
“We have seen that the framers of the Fourteenth
Amendment unanimously agreed that Indians were not ‘subject to the
jurisdiction’ of the U.S. Beginning in 1870, however, Congress began to
pass legislation offering citizenship to Indians on a tribe by tribe
basis. Finally, in 1923, there was a universal offer to all tribes. Any
Indian who consented could become an American citizen. This citizenship
was based on reciprocal consent: an offer on the part of the U.S. and
acceptance on the part of an individual. Thus Congress used its
legislative powers under the Fourteenth Amendment to determine who was
within the jurisdiction of the U.S. It could make a similar
determination today, based on this legislative precedent, that children
born in the U.S. to illegal aliens are not subject to American
jurisdiction. A constitutional amendment is no more required now than it
was in 1923.”68
This sentiment is shared by the influential Judge Posner, who held in
a recent decision that “A constitutional amendment may be required to
change the rule whereby birth in this country automatically confers U.S.
citizenship, but I doubt it.”69
Posner concluded: “Congress would not be flouting the Constitution if
it amended the Immigration and Nationality Act to put an end to the
nonsense.”70
An International Comparison
The United States is one of the few countries on the globe to
recognize universal and automatic citizenship for children born to
illegal and temporary immigrants. The overwhelming majority of the
world’s countries do not have such a birthright policy. Out of the
world’s 194 countries, the Center for Immigration Studies can confirm
that only 30 countries grant automatic birthright citizenship. This
research has been the result of direct communication with foreign
government officials and analysis of relevant foreign law including
statutory and constitutional law.71
The map below illustrates which countries have automatic birthright
citizenship, those that do not, and the remaining few countries which we
could not confirm. Table 1 lists each country by name.
Click on map for a larger version
Developed
countries generally do not grant automatic birthright citizenship to
children of illegal aliens. There are 31 countries on the International
Monetary Fund’s list of advanced economies as listed in Table 2. The
United States and Canada are the only advanced economies in the world
which grant automatic birthright citizenship to children of illegal and
temporary aliens. Similarly, the United Nation’s list of countries with
“very high human development” includes only three countries recognizing
universal birthright citizenship: Canada, the United States, and
Barbados, as listed in Table 3. As noted below, the government of
Barbados may be on the verge of ending birthright citizenship for
children of illegal aliens.
In
recent years, the international trend has been to end universal
birthright citizenship. Countries that have ended universal birthright
citizenship include the United Kingdom, which ended the practice in
1983, Australia (1986), India (1987), Malta (1989), Ireland, which ended
the practice through a national referendum in 2004, New Zealand (2006),
and the Dominican Republic, which ended the practice in January 2010.
The reasons countries have ended automatic birthright citizenship are
diverse, but have resulted from concerns not all that different from the
concerns of many in the United States. Increased illegal immigration is
the main motivating factor in most countries. Birth tourism was one of
the reasons Ireland ended automatic birthright citizenship in 2004.72
If the United States were to stop granting automatic citizenship to
children of illegal immigrants, it would be following an international
trend.
Some countries which currently recognize
automatic birthright citizenship are considering changing the policy.
For example, Barbados is struggling with large amounts of immigration
(relative to its size), both legal and illegal, and is contemplating
ending birthright citizenship for children of illegal aliens. The
country initiated an illegal alien amnesty last summer which gave
illegal aliens six months to legalize their status. Anyone still in the
country illegally after December 1, 2009, faces deportation. The amnesty
had a number of conditions, and any illegal alien with three or more
dependents could not automatically qualify. Consequently, the question
of what to do with children born to illegal aliens became central to
political debate. A series of changes have been recommended by the
nation’s immigration department, and one proposed change is the end of
birthright citizenship.73
Not too far from Barbados, a similar
discussion has been taking place. Antigua and Barbuda, one of the few
nations that currently grant automatic birthright citizenship to
children of illegal aliens, just this year outlined a series of
enforcement-minded recommendations aimed at tightening their
citizenship, immigration, and work permit policies.74
In a government report, the authors note that “the so called ‘open
door’ policy relative to immigration should be discontinued as there is a
significant risk of Antigua and Barbuda nationals being displaced in
the job market by ‘non-nationals’ whose willingness to work hard for low
wages makes them attractive to prospective employers.”75
The authors also note that work visa issuance should “have as priority
the ‘importing’ of skills needed in Antigua and Barbuda for the growth
of the economy.”76
Although the report does not call for a change to birthright
citizenship policies, it does note that “citizenship of Antigua and
Barbuda should be treated as a thing of value and worth.”77
Interestingly, when asked about Antigua and Barbuda ending birthright
citizenship for illegal aliens, the consular officer with whom I spoke
stated, “probably they might look at it down the road.”78
There are varying approaches to
citizenship throughout the world. Many countries require at least one
parent to be a citizen of the country in order for their child to
acquire the country’s citizenship. Some countries make a distinction
between whether that citizen parent is the mother or father. There are
other variations as well. In Australia, a country that does not
recognize automatic birthright citizenship, a child born to illegal
immigrant parents may obtain Australian citizenship at age 10 if he was
born after 1986 and has lived in Australia for the entire 10 years.79
An Australian official explained that the child must still petition the
immigration minister, who conducts fact-finding to verify the claim.
The official also added that it would be “extremely unlikely” that
illegal immigrants would be able to remain in Australia for the
necessary ten-year period, meaning that the grant of citizenship rarely
happens.80
It is important to remember that while a
country may officially recognize birthright citizenship, it does not
mean that the country is necessarily easy on illegal immigration.
Paraguay, for example, has a birthright citizenship policy, but it has
serious laws against illegal immigration which not only bar the
employment of illegal aliens, but also prohibit owners of hotels and
guesthouses from providing illegal aliens with accommodations.81
Mexico has a unique citizenship policy in
that the country’s constitution grants automatic nationality to anyone
born in Mexico, but not automatic citizenship. This is true even of
children born to Mexican citizens. When a Mexican reaches the age of 18,
they then acquire citizenship. Mexican government officials with whom I
spoke were uncertain how often their country grants nationality or
citizenship to children born to illegal immigrants. The effort Mexico
makes to discourage immigration indicates that this may be a rare
occurrence. For example, the Mexican Constitution, among other things,
allows the government to expel any immigrant for any reason without due
process.82
When combined with the protected constitutional right of making a
citizen’s arrest, which allows “any person” to detain a suspected
criminal and his accomplices who are caught violating a law, it is clear
living in Mexico illegally is not easy.83
The constitution also severely limits the property rights of immigrants
and requires immigrants to get permission from the government to own
land; even if permission is granted, the immigrant can never own land
within 100 kilometers of land borders nor land within 50 kilometers of
the coasts.84
An immigrant wishing to change these rules will have difficulty as the
Mexican Constitution states that only citizens are entitled to
participate in Mexico’s political affairs.85
Even with Mexico’s form of birthright citizenship, any child born to
illegal immigrants or even legal immigrants in Mexico is barred from
becoming president of Mexico; not only must the Mexican president be
born in Mexico, but so must at least one of his parents.86
While Mexico may grant citizenship to children born to aliens, the
nation’s constitution clearly imputes a second-class status on children
of immigrants.
Additionally, many countries which do
recognize birthright citizenship are not necessarily quick to grant
citizenship to all people within their jurisdiction. Some countries are
the focus of human rights groups because they do not grant citizenship
to indigenous people. For example, Peru, a country with a birthright
citizenship policy, has an indigenous population that makes up
approximately 45 percent of the nation’s total population, but the
indigenous do not have access to Peruvian citizenship. Unlike the United
States, some countries’ birthright citizenship policies come with
exceptions.
It is also important to remember that some
of the countries which do automatically grant citizenship to children
of illegal immigrants may not have much illegal immigration at all. For
this reason, comparing countries like Fiji to the United States, for
example, may be somewhat disingenuous; Fiji has an estimated illegal
immigrant population of 2,000 people, while the United States has an
estimated illegal immigrant population of up to 12 million.87
Moreover, not all countries which
recognize birthright citizenship allow the child to initiate chain
migration by petitioning to have additional family members enter.
Consequently, some countries are able to avoid some of the problems
associated with birthright citizenship experienced in the United States.
Perhaps most instructive is the clarity
with which most other nations have authored their respective citizenship
laws. Most countries’ citizenship laws contain very little ambiguity
and do not require one to conduct a historical analysis or seek judicial
clarification for the purpose of determining intent. For example,
Brazil’s constitution confers citizenship on “those born in the
Federative Republic of Brazil, even if of foreign parents,” Australia’s
statutory law declares a person born in Australia an automatic
Australian citizen “if and only if a parent of the person is an
Australian citizen, or a permanent resident, at the time the person is
born,” while the Dominican Republic’s new constitution denies birthright
citizenship to “foreigners who are in transit or who reside illegally
in Dominican territory.”88
To the extent there remains any debate
over U.S. citizenship, it may be helpful for the U.S. Congress to
clarify the scope of the Citizenship Clause of the 14th Amendment.
Conclusion
Extending 14th Amendment birthright
citizenship to any class of persons is a momentous matter because it
confers very valuable benefits and imposes very serious obligations on
children who have no say in the matter and it also has long-lasting and
important effects on the size and composition of the U.S. population.
The executive branch’s current practice of extending birthright
citizenship to nonresident aliens has never been authorized by any
statute or any court decision. The legislative record left by drafters
of the 14th Amendment shows that they were primarily concerned about
conferring citizenship on freed slaves. While the Supreme Court has
settled the matter as it applies to permanent resident aliens, it has
yet to decide the matter as it applies to aliens whose presence in the
United States is temporary or unlawful. As a result, Americans are
justifiably upset with a policy that has become standard practice
without their approval.
Because the legislative history is not
decisive and there is no Supreme Court precedent, serious legal scholars
and eminent jurists have argued that Congress should uses its inherent
authority to define the scope of birthright citizenship. Congress can
use the hearing process to promote a calm, informed, and serious
discussion on the wisdom and legality of granting automatic U.S.
citizenship to the children of “birth tourists,” illegal aliens, and
other categories of foreign visitors who are taking advantage of a
clause in the 14th Amendment that was primarily aimed at helping an
entirely different class of persons.
Whatever the outcome of such a debate, and
whatever form resulting legislation might take, Americans could then at
least feel confident that their country’s citizenship policy had become
law through the political process and that the public had a say in
determining the nation’s future. Should the United States end the
practice of granting automatic and universal citizenship to anyone born
on U.S. soil, the nation would be following a global trend already
embraced by most of the world’s democracies.
End Notes
1
Birthright Citizenship Act of 2009, H.R.1868, 111th Cong. (2009). See
also Jerry Seper, "Senate bill would slash U.S. immigration quota,"
Wash. Times,
Aug. 16, 1993, at A4 (noting that Sen. Harry Reid’s legislation, the
Immigration Stabilization Act of 1993 (S.1351), would, among other
things, “Change existing law to ensure that a person born in the United
States to an alien mother who is not a lawful resident would not
automatically become a U.S. citizen,” and quoting Sen. Reid as saying,
“Our borders have overflowed with illegal immigrants placing tremendous
burdens on our criminal justice system, schools and social programs… The
Immigration and Naturalization Service needs the ability to step up
enforcement… Our federal wallet is stretched to the limit by illegal
aliens getting welfare, food stamps, medical care and other benefits,
often without paying taxes… Safeguards like welfare and free medical
care are in place to boost Americans in need of short-term assistance…
These programs were not meant to entice freeloaders and scam artists
from around the world… Even worse, Americans have seen heinous crimes
committed by individuals who are here illegally.”)
2 Steven Camarota, "Births to Immigrants in America, 1970 to 2002," Center for Immigration Studies, July 2005,
www.cis.org/ImmigrantsBirths-1970-2002,
estimated 383,000 births to illegal-immigrant mothers in 2002. The Pew
Hispanic Center has estimated 340,000 births with at least one
illegal-immigrant parent in 2008; Jeffrey S. Passel and Paul Taylor,
"Unauthorized Immigrants and Their U.S.-Born Children," Aug. 11, 2010,
http://pewhispanic.org/files/reports/125.pdf.
3
Jeffrey S. Passel and D’Vera Cohn, "A Portrait of Unauthorized
Immigrants in the United States," Pew Hispanic Center, Apr. 14, 2009,
www.pewhispanic.org/files/reports/107.pdf.
4 Oforji v. Ashcroft, 354 F.3d 609, 620-1 (2003).
5 Steven
Camarota, "Immigrants in the United States, 2007: A Profile of
America’s Foreign-Born Population," Center for Immigration Studies, Nov.
2007,
www.cis.org/immigrants_profile_2007. For other states, see Table 25, “Welfare Use for Illegal Alien-Headed Households.”
6 Press
Release, Tony Bell, Communications Deputy for the Office of Los Angeles
County Supervisor Michael D. Antonovich, "Welfare Costs for Children of
Illegal Aliens Exceeds $50 Million," Apr. 19, 2010,
antonovich.lacounty.gov/Pages/Press%20Releases/10/April/Illegal%20Immigration%2041910.html.
7 Camarota,
supra note 5.
8 Sherry Jacobson, "Across Texas, 60,000 Babies of Noncitizens Get U.S. Birthright,"
Dallas Morning News, Aug. 8, 2010,
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/080810....
9 "Family Based Immigrants," U.S. Dept. of State, travel.state.gov/visa/immigrants/types/types_1306.html.
10
Randall Monger, "Annual Flow Report: U.S. Legal Permanent Residents:
2009," Office of Immigration Statistics, Dept. of Homeland Security,
Apr. 2010,
www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.
See also Chain Migration Chart, NumbersUSA,
www.numbersusa.com/content/learn/issues/chain-migration/chain-migration-....
11 Philip Martin, "There Is Nothing More Permanent Than Temporary Foreign Workers," Center for Immigration Studies, Apr. 2001,
www.cis.org/sites/cis.org/files/articles/2001/back501.html.
12 Barbara Demick, "Korean Moms Want ‘Born in USA’ Babies,"
L.A. Times, May 2002,
www.fileus.org/dept/citizenship/02-05-26-latimes-birth_tourism_asia.html.
13 Işıl Eğrikavuk, "Birth Tourism in US on the Rise for Turkish Parents,"
Hürriyet Daily News, Mar. 12, 2010,
www.hurriyetdailynews.com/n.php?n=birth-tourism-to-the-usa-explodes-2010....
15 Mariana Alvarado, "Hospital Lures Mexican Moms; Tucson Medical Center ‘Birth Package’ Raises Questions,"
Ariz. Daily Star, June 21, 2009,
http://azstarnet.com/news/local/article_9dd9a46b-a189-5629-835b-03029d25....
16 Keith B. Richburg, "For Many Pregnant Chinese, a U.S. Passport For Baby Remains a Powerful Lure,"
Wash. Post, July 18, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/17/AR201007....
18 Davidson Iriekpen, "Citizenship Rights: American Agitations Threaten a Nigerian Practice,"
This Day (Nigeria), Aug. 16, 2010,
http://www.thisdaylive.com/articles/citizenship-rights-american-agitatio...
19 This is not a new phenomenon. See, e.g., Wayne King, "Mexican Women Cross Border so Babies Can Be U.S. Citizens,"
N.Y. Times,
Nov. 21, 1982 (“If she has a document for entry and there is no reason
to deny that entry, she can come in,” said Berl Williams, acting agent
in charge of the Immigration and Naturalization Service at Brownsville.
“The local crossing card is good for 72 hours. We don’t stop pregnant
women at the border.”).
20 Birthright Citizenship Act of 2009, H.R.1868, 111th Cong. (2009).
21 Roy Beck, "Retiring Rep. Deal Leaves 17-Year Record of Trying to End Birthright Citizenship," Mar. 1, 2010,
www.numbersusa.com/content/nusablog/beckr/march-1-2010/retiring-rep-deal....
22 Press Release, Rasmussen Reports, “58% Say No to Citizenship for Children of Illegal Immigrants,” June 3, 2010,
http://www.rasmussenreports.com/public_content/politics/current_events/i....
23 Peter H. Schuck & Rogers M. Smith,
Citizenship Without Consent: Illegal Aliens in the American Polity 9-42 (Yale Univ. Press 1985) (1985).
24 Edward J. Erler,
Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny, California State University, San Bernardino, July 2008,
www.hillsdale.edu/news/imprimis/archive/issue.asp?year=2008&month=07. See also John Eastman,
From Feudalism to Consent: Rethinking Birthright Citizenship, Heritage Foundation, Mar. 30, 2006,
www.heritage.org/Research/Reports/2006/03/From-Feudalism-to-Consent-Reth....
26 William Blackstone,
Commentaries on the Laws of England, A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979, avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp.
27
This sentiment against the ascriptive approach was reiterated by
Congress in the Expatriation Act of 1868, a law passed within days of
passage of the 14th Amendment. The Act read, in part: “Be it enacted…
That any declaration, instruction, opinion, order, or decision of any
officers of this government which denies, restricts, impairs, or
questions the right of expatriation, is hereby declared inconsistent
with the fundamental principles of this government.” Expatriation Act of
1868, 15 Stat. 223, 40th Cong. (2d Sess. 1868).
28 Schuck ,
supra note 23, at 2.
32 Scott v. Sandford, 60 U.S. 393 (1857).
33 An
Act to protect all Persons in the United States in their Civil Rights,
and furnish the Means of their Vindication (the Civil Rights Act of
1866), 14 Stat. 27 (1866).
34 Schuck,
supra
note 23, at 74 (“Although the Citizenship Clause was derived from the
1866 act, it was by no means identical. There were four textual
differences… The legal scholar is sorely tempted to ascribe significance
to these intriguing differences in language, especially when they
appear in two documents adopted by the same body within a period of
weeks. Unfortunately, neither the Congressional debates nor subsequent
judicial exegesis provides much insight into the origins or meaning of
these textual disparities.”).
35 Lino A. Graglia, "Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy,"
Tex. Review of Law & Politics, Vol. 14, No. 1 (2009),
www.trolp.org/main_pgs/issues/v14n1/Graglia.pdf.
36 U.S. Const. amend. XIV, § 1.
37 Schuck,
supra note 23, at 76.
38
See, e.g.," Ending Birthright Citizenship Would Not Stop Illegal
Immigration," Immigration Policy Center, June 15, 2010 (stating, without
any discussion of the “subject to the jurisdiction” language:
“Birthright citizenship, or the principle of jus soli, means that any
person born within the territory of the U.S is a citizen, regardless of
the citizenship of one’s parents;” and “The legislative history clearly
shows that Congress clearly intended to bestow birthright citizenship on
the U.S.-born children of immigrants.”),
www.immigrationpolicy.org/just-facts/ending-birthright-citizenship-would... see, e.g., Michael Gerson, "On immigration, Lindsey Graham abandons principle,"
Wash. Post,
July 30, 2010 (noting, “The authors of the Fourteenth Amendment
guaranteed citizenship to all people ‘born or naturalized in the United
States’ for a reason.”),
http://voices.washingtonpost.com/postpartisan/2010/07/on_immigration_lin....
39 See, e.g., Yule Kim,
Statutory Interpretation: General Principles and Recent Trends,
Congressional Research Service, Aug. 31, 2008 (citing various court
holdings: “Ordinarily, as in everyday English, use of the conjunctive
‘and’ in a list means that all of the listed requirements must be
satisfied, while use of the disjunctive ‘or’ means that only one of the
listed requirements need be satisfied;” and, “A basic principle of
statutory interpretation is that courts should ‘give effect, if
possible, to every clause and word of a statute, avoiding, if it may be,
any construction which implies that the legislature was ignorant of the
meaning of the language it employed.’ The modern variant is that
statutes should be construed ‘so as to avoid rendering superfluous’ any
statutory language.”),
www.fas.org/sgp/crs/misc/97-589.pdf.
40 Congressional Globe, Senate, 39th Congress, 1st Session, Feb. 1, 1866. Pg. 572 (statement of Sen. Trumbull).
41 Congressional Globe,
Senate, 39th Congress, 1st Session, Feb. 1, 1866. (See, e.g.,
statements of Sen. John B. Henderson, Pgs. 571-572; Sen. Trumbull, Pg.
572; Sen. Johnson, Pg. 573).
42 Schuck,
supra
note 23, at 96. See also Congressional Globe, Senate, 39th Congress,
1st Session, May 30, 1866. Pg. 2891 (statement of Sen. Cowan).
Interestingly, there is some evidence that the 14th Amendment’s framers
would not have supported a permissive interpretation of the Citizenship
Clause that encourages mass immigration in the way it does today. Sen.
Edgar Cowan (R-Penn.) was concerned about giving the federal government
too much control over the granting of citizenship and asked whether
immigrants “…have the free right to locate [to California] and settle
among [Californians], and if they have an opportunity of pouring in such
an immigration as in a short time will double or treble the population
of California, I ask, are the people of California powerless to protect
themselves? I do not know that the contingency will ever happen, but it
may be well to consider it while we are on this point.” The contingency
certainly happened. California’s population at the time of this debate
in 1866 was approximately 488,000. California’s population more than
doubled by 1890 (at 1,213,398) and more than tripled by 1900 (at
1,485,053). Today, California’s population is over 37 million, or
approximately 76 times larger than it was when Sen. Cowan voiced his
concern. Considering Sen. Cowan was concerned about a doubling of
California’s population, it is difficult to argue that he would have
agreed to language that he thought would allow for a liberal and
universal birthright citizenship policy.
43 Congressional Globe, Senate, 39th Congress, 1st Session, Feb. 1, 1866. Pg. 2890 (statement of Sen. Howard).
44 Congressional Globe, Senate, 39th Congress, 1st Session, May 30, 1866. Pg. 2893 (statement of Sen. Trumbull).
46 John P. Foley,
The Jeffersonian Cyclopedia: A Comprehensive Collection of the Views of Thomas Jefferson, Funk & Wagnalls, 1900, p. 32,
www.archive.org/stream/thejeffersoncycl00jeffuoft#page/32/mode/2up/searc....
47 Congressional Globe, Senate, 39th Congress, 1st Session, May 30, 1866. Pg. 2893 (statement of Sen. Johnson).
48 Camarota,
supra note 5.
49
Brief of the United Mexican States as Amicus Curiae in Support of
Plaintiffs Pursuant to Court Order, Friendly House, et al. v. Michael B.
Whiting, et al., (D. Ariz. 2010) (No. CV-10-1061-PHX-SRB),
http://www.deweyleboeuf.com/en/Firm/MediaCenter/PressReleases/2010/06/~/....
51
Peter Jennings, "The New Frontier; Juan Hernandez Works on Both Sides of
Mexico/American Border to Help Resolve Concerns of Mexicans," ABC News:
Nightline, June 7, 2001.
52 Slaughter-House Cases, 83 U.S. 36, 73 (1873).
53 Elk v. Wilkins, 112 U.S. 94, 103 (1884).
56 United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898).
57
Joseph Story, Commentaries on the Conflict of Laws, ch. 3 § 48
(Hilliard, Gray, and Company 1834). See also Inglis v. Trustees of
Sailor’s Snug Harbor, 28 U.S. 99 (1830).
61 Edward J. Erler,
The Founders on Citizenship and Immigration: Principles and Challenges in America 57-67 (Rowman & Littlefield, 2007).
62 Schuck,
supra note 23, at 78.
63 Plyler v. Doe, 457 U.S. 202, 212 n.10 (1982).
64 Lino A. Graglia, "Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy,"
Tex. Review of Law & Politics, Vol. 14, No. 1 (2009),
www.trolp.org/main_pgs/issues/v14n1/Graglia.pdf.
65 Schuck,
supra note 23, at 117.
66 Jon Feere, "Plenary Power: Should Judges Control U.S. Immigration Policy?" Center for Immigration Studies, Feb. 2009,
www.cis.org/plenarypower.
67 Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
68 Erler,
supra
note 24. See also Hearing on the Citizenship Reform Act of 1997 (H.R.
7), Before the House Comm. on the Judiciary, Subcomm. on Immigration and
Claims (June 25, 1997) (statement of Edward J. Erler, Professor,
California State University),
http://judiciary.house.gov/legacy/6042.htm.
71 We could not confirm the citizenship policy of 19 nations. This report will be updated if the information becomes available.
72 Rainer Bauböck, "Who are the citizens of Europe?"
Eurozine, Dec. 23, 2006,
http://www.eurozine.com/articles/2006-12-23-baubock-en.html.
73 Barbados Ministry of Labour & Immigration,
Comprehensive Review of Immigration Policy and Proposals for Legislative Reform,
noting: “It is the Department’s view that the legislation should be
amended to stipulate that (as in the United Kingdom and the Bahamas)
children born in Barbados will not be deemed to be citizens of Barbados,
unless at least one parent at the time of the birth, has permanent
status in Barbados. In addition persons born in Barbados should not be
deemed to be citizens where the parents are residing illegally in
Barbados.” Available at:
www.foreign.gov.bb/Userfiles/File/IMMIGRATION%20POLICIES.pdf.
74 Ms. E. Ann Henry et al.,
Report on Review of Matters Pertaining to Immigration, Work Permits, Citizenship and Electoral Reform, Gov’t of Antigua and Barbuda, Feb. 9, 2010,
www.ab.gov.ag/gov_v3/pdf/immigration_report.pdf.
78
Phone conversation with Ms. Gracelyn Henry, Embassy of Antigua and
Barbuda, Washington, D.C., June 8, 2010. It is likely that the issue of
birthright citizenship for children of illegal aliens will have to be
addressed by Antigua and Barbuda if the recommendations become law
because the country does not have any interest in legalizing illegal
alien parents: “The prevailing view was that if we are to pursue
Immigration reform in Antigua and Barbuda, it is of importance that the
message of zero-tolerance of noncompliance with the Law must be
conveyed. Flowing from this was the view that amnesty was not an
acceptable way forward and should not be entertained as an option.
Indeed, some persons were of the view that persons who were in Antigua
and Barbuda illegally should be deported. It is the recommendation of
the Committee that there is no compelling argument for implementing a
program for the wide spread grant of amnesty.” Instead, the country
recommends that “persons who are residing in Antigua and Barbuda
illegally should be given an opportunity to leave on their own” but if
they do not do so within six months, “appropriate action should be
taken.” Just as in Barbados, the question of separating children from
parents would immediately put the propriety of automatic birthright
citizenship into the spotlight.
79
Automatic acquisition of citizenship on 10th birthday “A child born in
Australia on or after 20 August 1986, who did not acquire Australian
citizenship at birth, automatically acquires it on their 10th birthday
if they have been ordinarily resident in Australia for 10 years from
birth. This provision operates regardless of the parent/s immigration or
citizenship status,”
www.immi.gov.au/media/fact-sheets/17nz.htm.
80 Conversation with Rose Lacey, Citizenship and Migration Officer, Australian High Commission, May 31, 2010.
82 Mex. Const. tit. I, ch. III, art. 33,
http://info.juridicas.unam.mx/infjur/leg/constmex/pdf/consting.pdf. See also, J. Michael Waller, Mexico’s Glass House, Center for Security Policy, Jan. 13, 2009,
http://www.centerforsecuritypolicy.org/p17844.xml.
83 Mex. Const. tit. I, ch. I, art. 16.
84 Mex. Const. tit. I, ch. I, art. 27.
85 Mex. Const. tit. I, ch. I, art. 9.
86 Mex. Const. tit. III, ch. III, art. 82.
87 Kalinga Seneviratne, "Islanders welcome Chinese cash, but not Chinese," Asia Times Online, Sept. 17, 2002,
http://www.atimes.com/atimes/China/DI17Ad04.html.
88 Braz. Cont. tit. II, ch. III, art. 12,
http://www.v-brazil.com/government/laws/titleII.html; Australian Citizenship Act 2007, pt. II, div. 1 (2007),
http://www.comlaw.gov.au; Dom. Rep. Const. ch. V, § 1, art. 18,
http://www.jmarcano.com/mipais/politicos/title1.html.
