This article was written by guest author Alexandria M. Hohman. Ms. Hohman was the Project Manager for ”Promoting Civility” CLE Series at Robert’s Fund, earned her B.A. in Political Science at the University of Nevada, Las Vegas in 2006 and her J.D. from Seattle University in 2011.
Roughly, four million individuals become Americans every year[1] without even trying and now influential politicians seek to remove this. The benefit in controversy is birthright citizenship, which is found in an obscure provision in the Fourteenth Amendment’s Citizenship Clause. The Citizenship Clause codifies the common law principle of jus soli[2]—conferring citizenship to a person who is born physically in the United States.[3] Today, the calls for revocation of birthright citizenship would only allow citizenship through jus sanguinis or lineage.[4] As states struggle to address immigration, revocation is touted as a way to curb the incentives for immigrants who come to the country.[5] However, the true ramifications of such an action have not been critically examined.
Critics charge immigrants with taking unfair advantage of the wealth and prosperity of the United States, thus stealing resources from “true Americans.”[6] Critics alleged that birthright citizenship allows foreigners to exploit the system through “birth tourism” and “anchor babies.” Birth tourism occurs when non-citizens come to the United States to give birth so that their children become United States citizens.[7] “Anchor babies” is a racially charged term, defined as children of immigrant women of color, alleged to be overly fertile and scheming to “anchor” themselves to the United States by giving birth within the country.[8] However, these concerns are largely unwarranted and largely rooted in xenophobia. For example, the fear of “chain migration”[9] where one child holding citizenship could theoretically sponsor an entire family is based on a stereotype of the fertile woman of color.[10]
Race and, later, xenophobia have played a historical role in birthright citizenship, beginning with the infamous case of Dred Scott v. Sandford.[11] Scott’s holding prohibits slaves or their descendants from obtaining federal citizenship,[12] including those descendants who were born free.[13] The issue of birthright citizenship and nonwhite racial groups finally came squarely before the courts in 1898, when the United States Supreme Court considered whether someone born to immigrant parents was a citizen based on jus soli.[14] In United States v. Wong Kim Ark, Wong received citizenship, even though he was of Chinese descent with foreign-born parents, subject to the emperor of China.[15] It is important to note how pivotal this decision is, considering the unpopularity of Chinese immigrants during the 1800s, who were “every bit as unpopular as present-day illegal immigrants.”[16]
If the Citizenship Clause were amended or revoked, the direct consequence would result in children who are not born to American citizens, or designated members of society would lack constitutional protections previously granted under jus soli.[17] Creating a class of stateless people would discourage social harmony, assimilation, and equality.[18] Individuals, Latinos in particular[19] who could not obtain birthright citizenship, would find themselves unfairly marginalized.[20] Without citizenship, they would fall under the plenary power doctrine,[21] thus splitting the population in unprecedented fashion. Congress, not the courts, decides all substantive immigration matters including citizenship requirements because of the plenary power doctrine. “‘Plenary’ means full, or complete, and application of the doctrine means that U.S. courts, rather than assessing the constitutionality of governmental action, defer to the ‘political’ branches of government, Congress . . .” which rules on immigration.[22] In other words, Congress has full power to regulate in this area with little to no judicial review. Under Chae Chan Ping,[23] aliens were under complete control of Congress based on inherent sovereignty.[24]
The combination of no political or judiciary voice with an aggressive immigration system will drive those who lack citizenship into the shadows.[25] Becoming “hereditary criminals,” these children will likely be subjected to abuse, exploitation, or neglect by the state.[26] Even with access to public education, these children will live a life of poverty with little opportunity to escape it.[27] These stateless individuals will be unable to obtain government aid and will not be able to work legally.[28] Inability to work legally sets the stage for private exploitation by unscrupulous employers who often abuse undocumented non-citizens.[29] Furthermore, revocation would create an administrative nightmare, including how to categorize people, the requirements of citizenship, amending the Constitution, and the possible massive deportation that would occur.[30] Even if birthright citizenship were to be revoked, this would likely have little effect on whether individuals decide to come here. Numerous individuals wait decades for a green card to immigrate to this country and do not rely on the availability of birthright citizenship.[31] Thus, even setting aside its inhumanity, revocation is an ineffective means of immigration reform.[32]
Finally, the debate over immigration and birthright citizenship is unlikely to end in the near future. If the Citizenship Clause of the Fourteenth Amendment is amended or revoked, the resulting system would be eerily reminiscent of Jim Crow laws used to control and subjugate African Americans.[33] Without citizenship, individuals will have their movement restricted, access to voting denied, access to housing reduced, limited or non-existent employment opportunities, and possible restrictions on education opportunities.[34] Non-citizens would live under a system that does not even afford them a modern day equivalent of “separate but equal.”[35] The revocation of the Citizenship Clause raises not only pragmatic concerns, it also raises the potential for widespread abuse of those who would become undocumented under the law.
[1] Table 78, United States Census, 2008, http://www.census.gov/compendia/statab/2012/tables/12s0078.pdf.
[2] The principle of jus soli is citizenship based on the country of birth. Margaret Mikyung Lee, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, Congressional Re. Serv., 2, Aug. 12, 2010, http://www.fas.org/sgp/crs/misc/RL33079.pdf.
[3] U.S. Const. amend. XIV, §1.
[4] Katherine Pettit, Addressing the Call for the Elimination of Birthright Citizenship in the United States: Constitutional and Pragmatic Reasons to Keep Birthright Citizenship Intact, 15 Tul. J. Int’l & Comp. L. 265, 267 (2006).
[5] See Sara Catherine Barnhart, Second Class Delivery: The Elimination of Birthright Citizenship as a Repeal of the “The Pursuit of Happiness”, 42Ga. L. Rev. 525, 542 (2008).
[6] Jon Feere, Birthright Citizenship in the United States: A Global Prospective,Center ofImmigration Studies, 2010, www.cis.org/birthright-citizenship.
[7] Debra Cassens Weiss, Senator Proposes Constitutional Amendment to Combat “Birth Tourism”, ABA J., Aug. 9, 2010, http://www.abajournal.com/news/article/senator_proposes_constitutional_amendment_to_combat_birth_tourism/.
[8] Priscilla Huang, Anchor Babies, Over-Breeders, and the Population Bomb: The Reemergence of Nativism and Population Control in Anti-Immigration Policies, 2 Harv. L. & Pol’y Rev. 385, 400 (2008).
[9]Chain migration is where once a child as aUnited States citizen reaches the age of 18, he or she as aUnited States citizen would then be able to sponsor unmarried children and spouses. Later at 21, the citizen may sponsor parents and unmarried citizens. 8 U.S.C. §1153, INA §203(a)(1).
[10] Huang, supra note 8.
[11] Marshall Fitz et al., Immigration Nation: Reversing Birthright Citizenship Would Reverse a Unique American Achievement, Apr. 8, 2010, http://www.americanprogress.org/issues/2010/04/immigration_nation.html.
[12] Dred Scott v. Sandford, 60U.S. 393.
[13] Id.
[14] United States v. Wong Kim Ark, 169U.S. at 653.
[15] Id. at 652-53.
[16] Linda Chavez, The Case for Birthright Citizenship, Wall St. J., Aug. 11, 2010, http://online.wsj.com/article/SB10001424052748704164904575421222258065684.html.
[17] Id.
[18] Barnhart, supra note 5, at 542.
[19] Id.
[20] Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink Its Border and Immigration Laws 83 (New YorkUniversity Press 2007).
[21] Plenary power doctrine means that “Congress has virtually unfettered discretion to exclude immigrations” and congressional decisions are shielded from judicial review. Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink Its Border and Immigration Laws 17 (New YorkUniversity Press 2007).
[22] Natsu Taylor Saito, Asserting Plenary Power Over the “Other Indians, Immigrations, Colonial Subjects, and Why U.S. Jurisprudence Needs to Incorporate International Law, 20 Yale L. & Pol’y Rev. 427, 429 (2002).
[23] Chae Chang Ping v. United States, 130 U.S. 581 (1889).
[24] Id.
[25] Barnhart, supra note 5, at 559.
[26] Id. at 559-60.
[27] Id. at 561.
[28] Id.
[29] Pettit, supra note 4, at 282.
[30] Id., at 287-88.
[31] See Chris Hawley, Immigration to United States Will Only Ever Be a Dream, for Many Around World, Arizona Central, Sep. 26, 2010, http://www.azcentral.com/news/articles/2010/09/26/20100926united-states-immigration-laws.html.
[32] Marc Lacey, Birthright Citizenship Looms as Next Immigration Battle, N.Y. Times, Jan. 4 2011, http://www.nytimes.com/2011/01/05/us/politics/05babies.html?_r=1.
[33] Juan F. Perea et al., Race and Races: Cases and Resources for a Diverse America 148 (2nd ed. West Group 2007)
[34] Vernellia R. Randall, Examples of Jim Crow, Race, Racism, and the Law, University of Dayton, 2001, http://academic.udayton.edu/race/02rights/jcrow02.htm.
[35] Plessy v. Ferguson, 163U.S. 537 (1896).