For the first time in 10 years, the issue of Birthright Citizenship was in the forefront on Capitol Hill this week when the House Immigration Subcommittee held a hearing on Wednesday. The hearing sought to determine if Birthright Citizenship is the right policy for America, but it focused less on the policy question, and more on whether or not it’s a Constitutional mandate via the 14th Amendment. The panelists told the Subcommittee that only with a law passed by Congress could the courts offer an interpretation.
The first section of the 14th Amendment reads, “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.”
Rep. Steve King’s (R-Iowa) Birthright Citizenship bill, H.R.140, would require at least one parent of a child born in the United States to be a U.S. citizen or legal permanent resident for the child to be “subject to the jurisdiction thereof” and therefore receive automatic citizenship. You can read more about the “subject to the jurisdiction” debate here.
Panelist and President of the Southern Poverty Law Center, Richard Cohen, argued that everyone in the United States is subject to U.S. laws and therefore “subject to the jurisdiction”, but both Dr. John Eastman, Founding Director for the Claremont Institute’s Center for Constitutional Jurisprudence, and Lino Graglia, a University of Texas law professor, argued that the phrase would simply be redundant if it meant all persons in the United States, so it must serve a purpose.
Dr. Eastman made a distinction between those who are within the territorial jurisdiction of the United States and those who owe allegiance to the U.S.
“Think of it this way: foreign tourists visiting the United States subject themselves to the laws of the United States while here,” Eastman wrote in his prepared statement. “An Englishman must drive on the right side of the road rather than the left, for example, when visiting here. But they do not owe allegiance to the United States, they do not get to exercise any part of the political power of the United States, and they cannot be tried for treason if they take up arms against the United States.”
Dr. Eastman also explained why the issue is such a hot topic in the modern immigration debate, calling Birthright Citizenship the third largest magnet for illegal immigration after jobs and welfare services. Center for Immigration Studies Legal Policy Analyst, Jon Feere, backed up that claim in his testimony.
“Every year, 350,000 to 400,000 children are born to illegal immigrants in the United States. To put this another way, as many as one out of 10 births in the United States is now to an illegal immigrant mother,” Feere wrote in his prepared statement. “[U]nder [Pres. Obama’s] DAPA program (the Deferred action for Parents of Americans and Lawful Permanent Residents program), it would provide benefits to illegal immigrants who gave birth here and allow them to ‘stay in the U.S. without fear of deportation.'”
As Roy notes in his blog on the topic, “H.R. 140 would put an end to babies being used as a kind of shield for lawbreakers and would return them to just being the children of foreign citizens who would be expected to take their full family back home with them, just like any other civilized family would be expected to do — and just like is expected in most countries around the world where babies take the citizenship of their parents, not from the soil where their mothers happened to give birth.”
The question of whether or not the policy of granting automatic citizenship is good or not wasn’t discussed extensively, but Rep. King did note that if his legislation were passed and signed into law, he expected a legal challenge. In defense of their positions, most panelists referred to a Supreme Court decision or Senate transcripts from more than a century ago, so Feere argued that Congress should act and put the issue to the test.
“Some Administration decided to give them a Social Security number and a passport and no one really knows when,” Feere said. “I think Congress hasn’t addressed the problem, and as a result of not addressing it, we’re relying on floor statements from 100 years ago. We’re relying on a footnote from a Supreme Court case in 1982. I think some clarification from Congress would help a lot.”
Dr. Eastman agreed that the ball is in Congress’ court.
“Congress has the power over naturalization; it’s a plenary power, and that means you get to set the policy of how large or small or how restrained or unrestrained our immigration into this country is going to be,” he said.
CHRIS CHMIELENSKI is the Director of Content & Activism for NumbersUSA
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