Posted on 03/29/2010 1:12:55 PM PDT by OldDeckHand
George Will has never been particularly good on immigration, so I was a little surprised by his column calling for an end to automatic citizenship at birth (specifically, for the U.S.-born children of illegal aliens). This has been debated on the Corner before, and I've argued against such a change, but I think it's worth revisiting.
There are three issues: legal, empirical, and political. The first is the easiest — there just is no way to argue with a straight face that the drafters of the 14th amendment intended to give citizenship to the children of illegal aliens (Will persuasively cites this law review article by Lino Graglia). In fact, the amendment probably wasn't meant to apply even to U.S.-born children of legal immigrants who hadn't yet become citizens, though the Supreme Court decided otherwise in the 1898 Wong Kim Ark decision.
Second is the empirical question. Will writes:
A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, "can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state." Therefore, "It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry."
This may or may not be true. We can theorize about incentives all we want, but I haven't seen any real research on the motivations of people considering illegal immigration to the United States....
(Excerpt) Read more at corner.nationalreview.com ...
Will's original column may be found here.
Shot across the bow of the amnesty folks - you want to talk about immigration? You may not like what it leads to.
a
Probably? Make that a certainty.
Will is only addressing the very narrow issue of anchor baby citizenship.
He is otherwise on the record as supporting illegal immigrants in the US and opposing any strict measures to control or remove them.
He puts down those who would enact measures to remove them.
Will lives in a very upscale home where you couldn’t find an illegal alien within miles, but thinks it’s OK for you to put up with them in your neighborhood.
This argument is typical of ALL Liberal arguments, wherein they want a self-chosen, agenda-driven "expert" to come up with the answers THEY want to hear.
This one doesn't pass the common sense test at all.
TWO main reasons for infiltrating:
1) FREEBIES
2) Avoiding criminal prosecution for crimes committed in another country.
As far as the Anchor Babies; where else can you get FREE medical care, have your baby delivered by competent attending medical staff, AND, the BIG bonus is you can whine about "breaking up the family" when and IF they come to deport your criminal ass back to where you came from. This is a sorry interpretation of "citizenship" that the courts erred on, and we're living now with millions of free-rider, Democrat voting illegals (soon to be MADE citizens by the Liberals, to assure more voting power for them in the future).
DEPORT EVERY illegal and let them get in line with others if they want to come back in.
The best idea on immigration (that I’ve seen here) suggested that a simple modification of current Visa regulations could affect “anchor baby” entitlement.
To have a birth to an illegal immigrant documented the same as it is to a visitor on a valid visa (where a child is a citizen of the parent’s country, regardless of birth location), would only require a change in the wording of administrative statutes concerning travel (not an amendment to the Constitution).
Many such laws have been proposed starting in the 1990's, none have made it out of committee.
At least an establishment RINO like Will wrote the column, and in the WaPo to boot. That's a sea change.
Krikorian may not be sure it's a motivation, but I think it's a major one. Why else would the hospitals of the Southwest be going broke with massive numbers of unreimbursed births by women from Mexico and parts south?
Washing his car, mowing his lawn, cleaning his house, working at the dry cleaners, etc....they're everywhere.
His idea about letting the stay and become citizens is his blind spot.
Rancher and Dog Killed by Illegal Alien
http://www.freerepublic.com/focus/f-news/2481832/posts
I must disagree. If Congress were to take the position in a statute passed under Section 5 of the Fourteenth Amendment that "subject to the jurisdiction thereof" does not include children born to aliens not legally resident here, then the question would be addressed by the Supreme Court. It would of course depend on the ideological make-up of the Court at the time the case comes to them, but in fact the Court has never directly ruled on the matter and the view of Congress expressed in the "enforcement" legislation would count for something, though not dispositive.
And I think "subject to the jurisdiction" ought to be fairly interpreted to exclude someone born within the United States to foreign nationals who are not lawfully resident in the U.S..
If a foreign military force were to invade U.S. territory, would children born in the U.S. in the course of that military campaign to parents part of that military force be considered U.S. citizens? I think clearly not, and one should apply similar reasoning to foreign nationals who invade not by military force but rather by stealth or subterfuge.
Oh I bet they're within a block; mowing lawns, babysitting kids, cleaning gutters, doing landscaping...
As I understand it, a child born in the USA to British citizens visiting in this country on a valid visa is a US citizen at birth.
May also be a British citizen, but our laws presently ignore dual citizenship.
I'm not sure I precisely know what you mean. Visa or no visa, if a child is born in a US hospital, they receive a birth certificate. So long as that birth certificate isn't for a child born to a foreign diplomat, the federal government - due do Ark - must recognize the birth-right citizenship of that child.
But, directly to your point, it's not likely, for two reasons. First, births are recorded by county bureaus of vital statistics (or some other such similar names). They, as county agencies, are governed by state law, not federal law. In fact, because of federalism, the federal government is precluded from mandating what an actual birth certificate has to look like, or what information it must include. The CDC suggests guidelines, they don't mandate guideline. To put is simply, it's the state that decides who gets birth certificates, not the federal government. Of course, for the purposes of citizenship, the federal government recognizes virtually any birth certificate that reflects a US birth, except in cases where the child is the son/daughter of a foreign diplomat.
Second, as Will points out, whatever the original intent of the 14th Amendment was, it's practical interpretation by SCOTUS (as seen in the Ark v. US case) is clear. The Supreme Court reversing itself in this regard seems HIGHLY unlikely. Ergo, the only legally practical solution resides in a constitutional amendment. Of course, that doesn't seemly very likely, at all, given the political climate in the country.
Again, I speaking as "matter of practicality", it would need a constitutional amendment. Yes, Congress could pass a law defining "subject matter thereof", but such a law would need to withstand judicial review.
Congress has MANY times tried to define freedom of speech, only to be rebuked by the Supremes. I would guess the same would happen here, hence the practical need for an amendment.
People keep mischaracterizing Wong Kim Ark. The ruling in that case only goes so far as aliens legally resident. Statements in that case and other cases suggesting birthright citizenship for children of aliens present illegally are mere dicta. The distinction is significant.
To clarify my earlier post:
Case 1: A child born to a parent who is visiting the US on a valid Visa, is a citizen of its parent’s country.
Case 2: A child born to a parent who is visiting the US without a valid Visa, is a citizen of the USA.
The statutes covering Visa’s could be rewritten, to grant the rights of “case 1” to the situation of “case 2”.
A simple reclassification of travelers to the US, to extend (certain aspects of) the same treatment provided to Visa holders to “non-Visa holders” would do the trick. No constitutional amendment would be required.
Thanks B.
Congress could not "alter the meaning" of the substantive provision "subject to the jurisdiction" through enforcement legislation, but the Court has stated that it will give "wide latitude" to Congress in deciding whether it has altered the meaning or is merely seeking to carry out the objects of that Amendment.
In the case of the phrase "subject to the jursidiction" there are alternative interpretations one can reasonably make of that language, and excluding children of foreign nationals illegally resident is in my view one of those reasonable interpretations. Under the latitude the Court attempts to grant in this area, I would expect the Court to conclude that if Congress's interpretation is reasonable it does not "alter" the substantive language, and would be sustained.
No, the ruling doesn't specify - at least not the legal holding portion of the case. The case uses the language (when speaking about his parents)...
His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco
Nowhere in the decision do the words "legal resident" appear. Why? Because the concept of legal or illegal resident had no meaning at the time of that decision. It wasn't until a year or two later, when Congress passed its first immigration law - its name escapes me, but it had something to do with Chinese train laborers. Up until that time, anyone in the country was in the country legally, unless of course they were they bearing arms under a foreign flag.
You couple Ark with Plyler v Doe, and it becomes pretty clear how the Supreme Court would rule, if a case with specific question of "birth-right citizenship for illegals" would rule. My guess it would be 5-4, with Kennedy joining the majority.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.