Fresh off of passing a law to combat illegal immigration that was so controversial the federal government sued to block it, Arizona’s Republican-controlled Legislature is poised to push the limits of immigration policy yet again, this time by challenging the basic rules that decide who is an American.

The effort in Arizona, spearheaded by longtime anti-illegal immigration crusader and incoming state Senate President Russell Pearce, is remarkable for two reasons. First, it moves the focus of the immigration debate from those who are in the country illegally to their children, who currently become American citizens if they are born in the United States. Second, Arizona will not be alone in questioning the principle of “birthright citizenship,” because lawmakers in at least a dozen more states also have agreed to push similar legislation.

“On many issues we have led the pack,” says Arizona state Representative John Kavanaugh, a Republican who supports the effort. “But we have no problem leaving the gate with a whole host of other states.”

The legislators are trying to coordinate their efforts across states and will likely introduce nearly identical bills in next year’s legislative session. They are keeping mum on their exact approach. States could, for example, refuse to issue birth certificates to the children of unauthorized immigrants, or issue them different birth certificates than other U.S.-born children. They may also deny the children of illegal immigrants benefits such as Medicaid that are guaranteed to U.S. citizens.

Whatever tack is taken, the idea is for states to provoke lawsuits that will work their way up to the U.S. Supreme Court. Proponents want the justices to revisit a century-old interpretation of the 14th Amendment that says all children born on U.S. soil, regardless of their parents’ immigration status, are American citizens. “All we are asking for,” Kavanaugh says, “is our day in court.”

Supporters say that denying U.S. citizenship to the children of illegal immigrants would eliminate a major incentive for foreigners to sneak into the country. But opponents say the move would leave important questions about American citizenship to the whims of politicians rather than an objective standard.

At stake is the fate of about 340,000 children per year born to parents who are in the country illegally. These children represent roughly one out of every 13 babies born in the United States.

The Pew Hispanic Center recently found that a total of 5.1 million children in the United States had at least one parent who was an unauthorized immigrant. Of those, 4 million were American citizens while 1.1 million were themselves in the country illegally. Pew’s Jeffrey Passel says his research shows the vast majority of unauthorized immigrants did not have children until at least 18 months after entering the country. At least half did not do so until after they had been in the country for five years.

(The Pew Hispanic Center is part of the Pew Research Center, a separate entity from the Pew Center on the States, of which Stateline is a part.)

A long-established principle

The debate over immigrant children, which is likely to be one of the more controversial issues to come up in state legislatures next year, actually goes back centuries. A little more than a year after Robert E. Lee surrendered his Confederate forces at Appomattox Courthouse, a Congress dominated by Radical Republicans from Northern states passed the 14th Amendment. The states ratified it two years later. It contained several reforms designed to make sure that freed slaves were not deprived of their legal rights.

The first sentence of the amendment is the part that today’s anti-illegal immigration lawmakers want the Supreme Court to take another look at. It says: “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.”

The question being raised now is whether unauthorized immigrants are “subject to the jurisdiction” of the federal and state governments. If not, their children would not qualify for citizenship. But in rulings dating back to the late 1800s, the U.S. Supreme Court has said otherwise.

In 1898, for example, the high court said in the case of United States v. Wong Kim Ark that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens.”

Margaret Stock, a lawyer who teaches immigration law at the University of Alaska Anchorage, says that principle dates back to medieval times in England. The qualification that the parents must be subject to the home country’s jurisdiction goes back to those times, too, she says, in order to clarify that the children of foreign diplomats and invading armies would not be considered citizens.

But illegal immigrants today do not fit that exception, Stock argues. “Illegal immigrants have always been subject to our jurisdiction and subject to our laws,” she says. “That’s why we deport them.” If the immigrants were not subject to U.S. laws, Stock explains, they would be treated like diplomats or invading armies: They could not be charged with crimes or deported.

In an article written for the Immigration Policy Center, lawyer Elizabeth Wydra contends that the reason for the 14th Amendment was to make sure that future legislators could not strip citizenship rights from vulnerable minorities.

The framers of the amendment, she wrote, sought “precisely to enshrine automatic citizenship regardless of whether native-born children were members of a disfavored minority group or a welcomed band of ancestors.”

That argument has not won over critics such as Pennsylvania state Representative Daryl Metcalfe, a Republican who started a national group of state legislators who oppose illegal immigration. Metcalfe says both unauthorized immigrant parents and their American citizen children have “no allegiance to the nation as was supposed to be the case under the 14th Amendment.”

An incentive or a safeguard?

Kavanaugh, a supporter of this year’s Arizona law to give police more power to enforce federal immigration policies, says the new campaign to re-interpret the 14th Amendment is the next logical step to combat illegal immigration. He also acknowledges that the final say over the matter will rest with the courts.

“The birthright citizenship is a unique problem that can only be attacked from a constitutional standpoint,” says Kavanaugh. “The most efficient constitutional attack is one that challenges the existing interpretation, because clearly trying to amend the Constitution at this point would be protracted and probably, in the end, fruitless.”

Metcalfe of Pennsylvania says U.S. citizenship for children can be used as “an anchor” to bring relatives to the country legally — although the process by which that can happen is cumbersome. The parent would have to leave the country in order to ask for legal entry, which is not guaranteed.

“When you look at why illegals come across our borders,” Metcalfe says, “it’s illegal jobs, illegal benefits and ultimately … it’s American citizenship. It’s one of the incentives that draws people into our country.”

But Stock, the immigration lawyer, warns against the consequences of eliminating birthright citizenship. Right now, there are two ways to get American citizenship. One, called the law of the soil, is simple. If you are born in the country, you are a citizen. The second is called the law of blood, which basically allows the children — or sometimes the grandchildren or great-grandchildren — of U.S. citizens to become citizens themselves.

“If (birthright citizenship is) not the rule,” she says, “then you fall back on a really complex set of laws that’s worse than the Internal Revenue Code.” 
 

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