January 30, 2012
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June 1, 2010

A Hole in the Fence of Immigration Reform

By Cindy Simpson
A gaping hole sits squarely in the middle of the fence of proposed "Immigration Reform." This crack, while inviting to those on the other side of the border, seems to go largely unnoticed by the politically correct mainstream on the American side. Many experts call this loophole an "illegal immigration magnet," or more commonly, birthright citizenship. Also known as the "anchor baby" policy, it is the current practice of granting U.S. citizenship to all babies born in the U.S. to non-U.S. citizen parents, whether here legally but temporarily or even illegally.

Reform of this practice is notably absent from the bipartisan "draft framework" proposed by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) as outlined in their Washington Post op-ed, although they described their plan as both an effort to end illegal immigration and to develop a "rational legal immigration system" going forward:

Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.

In January, Lino Graglia, a Professor of Law writing in the Texas Review of Law and Politics, noted, "American law, as currently understood, provides an enormous inducement to illegal immigration: namely, an automatic grant of American citizenship to the children of illegal immigrants born in this country." 

George Will quoted Graglia in his recent controversial essay, "An Argument to be made about Immigrant Babies and Citizenship." Will boldly opened with the statement:

A simple reform would drain some scalding steam from immigration arguments that may soon again be at a roiling boil.  It would bring the interpretation of the 14th Amendment into conformity with what the authors of its text intended, and with common sense, thereby removing an incentive for illegal immigration.

Graglia opined that the framers of the 14th Amendment "could not have considered the question of granting birthright citizenship to children of illegal aliens because ... there were no illegal aliens in 1868 ... because there were no restrictions on immigration. It is hard to believe, moreover, that if they had considered it, they would have intended to provide that violators of United States immigration law be given the award of American citizenship for their children[.]"

Will highlighted some breathtaking statistics: "[M]ore than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally." Graglia added: "Nearly half of illegal-immigrant households are couples with children, 73% of which have an American-citizen child. Illegal immigrant parents also benefit ... from the welfare and other benefits to which their citizen child is entitled."

The Heritage Foundation has published quite a bit of research that refutes the concept of birthright citizenship. Constitutional expert Dr. John Eastman, currently running for California Attorney General, in an article entitled "From Feudalism to Consent:  Rethinking Birthright Citizenship" and an informative interview for Californians For Population Stabilization ("CAPS"), explained how this faulty interpretation has resulted in today's practice. Mark Cromer, in his essay "American Jackpot:  The Remaking of America by Birthright Citizenship," wrote,

According to Eastman, the real shift in popular perception began to take root in the late 1960s, when the idea that mere birth on American soil alone ensured citizen status.  "I have challenged every person who has taken the opposite position to tell me what it was that led to this new notion," he said. "There's not an executive order. There's not a court decision. We just gradually started assuming that birth was enough."

Eastman attributes some of it to our nation's loss of an intrinsic understanding of the language that the framers of the 14th Amendment spoke and used in that era, ergo a century later the phrase "subject to the jurisdiction" has been watered down in the collective American consciousness to require little more than an adherence to traffic safety laws.

In 2005, a Congressional hearing on "Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty" was held before the House Subcommittee on Immigration, although it received scant media coverage. Dual citizenship, although now tolerated, is specifically disallowed by the oath of allegiance required for naturalizing citizens. Dr. Eastman's testimony at the hearing included the remark: "The notion that we can have dual allegiance, that we can expect some of our citizens to actually take up arms for countries that might one day be engaged in war against us means that now is the time to revisit this." None of the hearing participants affirmed that either birthright or dual citizenship were constitutional -- merely that both were commonly accepted practice.

In light of the new controversial Arizona immigration law, one wonders how authorities will handle the illegals they round up if they are found to be parents of U.S. citizen children.  Graglia wrote:

Illegal alien parents with an American-citizen child remain subject to deportation, but that deportation becomes less likely. They will be able...to argue that deportation would subject the American-citizen child to "extreme hardship," a recognized ground for suspension of deportation, as it would potentially deprive the child of the benefits of his or her American citizenship... if the deported parents opt to take the American-citizen child with them, the child can return to this country for permanent residence at any time. The child can then, upon becoming an adult, serve as what is known in immigration law as an "anchor child," the basis for a claim that his or her parents be admitted and granted permanent resident status. The parents will then ordinarily be admitted without regard to quota limitations.

Another important consideration in any sort of "guest" or "temporary" worker program is the children born to these workers while in America. If these children receive automatic citizenship, the unintended consequence of such a program could be the addition of millions more permanent citizens and, by extension, their families.

In the past few years, legislation to clarify, redefine, or eliminate birthright citizenship has been proposed by Representatives Ron Paul (R-TX), Nathan Deal (R-GA), Mark Foley (R-FL), Gary Miller (R-CA), and others. Harry Reid even proposed legislation in 1993.

Edwin Meese, in his 2007 Report "Where We Stand: Essential Requirements for Immigration Reform," recognized the "historically and legally inaccurate" concept of birthright citizenship, and concluded that

[i]mmigration reform legislation, especially if it includes a temporary worker program, must correct this misunderstanding. In order to do so, Congress should reassert its constitutional authority.... They must rise above the politics and policy debate of the moment and develop a clear, comprehensive, meaningful, and long-term policy concerning immigration, nat­uralization, and citizenship.

on "A Hole in the Fence of Immigration Reform"
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