Policy Arguments in Favor of Retaining America’s Birthright Citizenship Law

[one...two...tree 2,762]

By Margaret D. Stock

The 2008 Presidential election campaign was unique in American history for a number of reasons, but one significant distinction has rarely been noted: it was the first campaign for President in which the U.S. citizenship of both leading candidates was challenged repeatedly. Throughout the campaign, both John McCain and Barack Obama faced lawsuits in which the plaintiffs alleged that the candidates were not U.S. citizens at birth and were therefore disqualified for the office of President under the United States Constitution. Each candidate spent time and resources defending against these accusations.

The Presidential candidates' experiences provide a snapshot of what may happen to many Americans if the current "birthright citizenship" rule set forth in the Fourteenth Amendment to the United States Constitution is changed. Absent the historic birthright citizenship rule, many persons who previously held undisputed U.S. citizenship would no longer be able to count on claiming that citizenship, or would be required to hire an experienced attorney, defend themselves against potential legal challenges, and overcome significant bureaucratic obstacles in order to prove their citizenship. In the end, a change in the birthright citizenship rule would be a bad idea as a matter of policy. Rather than solving our nation's immigration problems, changing the birthright citizenship rule would make those problems worse. In addition, such a change would impose significant administrative and legal burdens on every American, while depriving the United States of the significant benefits gained from birthright citizens.

Few doubt the dysfunction of the current U.S. immigration system—a dysfunction that has resulted in the presence of millions of unauthorized immigrants. But some observers have suggested that a partial "solution" to the problem of illegal immigration is to reinterpret or amend the 14^th Amendment to eliminate birthright citizenship. Those who suggest this change argue that giving automatic U.S. citizenship to persons born within the geographic limits of the United States encourages foreigners to enter or remain in the country illegally. These observers refer pejoratively to "anchor babies" (children born in the United States who are birthright citizens, but who have parents who are not already U.S. citizens or lawful permanent residents ). Presumably, these children serve to "anchor" their parents because, when the children turn 21, the parents can sometimes migrate legally based on their adult child's status as a citizen. This "anchor," these observers say, should be eliminated. Yet such a change would be ill-advised from a policy perspective.

Legal scholars refer to the concept of birthright citizenship as jus solis, the law of the soil, and the United States has had some common law form of this rule since the dawn of the Republic, although the concept was only enshrined in the Constitution after the Civil War. Of course, there are other ways that one can become a U.S. citizen besides having the good fortune of being born here. One can also derive citizenship through one's parent or parents (jus sanguinis, or the law of blood), or obtain citizenship by applying for it through the naturalization process, usually after having first obtained "lawful permanent residence." Thus, if birthright citizenship were eliminated, many people born in the United States would still be American citizens by inheritance or could perhaps become citizens by filing an application for naturalization. Others, however, would not be eligible for derivative citizenship and would have no status allowing them to apply for citizenship. They would remain "foreign denizens" who are resident here—at least until they somehow legalized their status, left, or were deported.

Unfortunately, U.S. law with regard to derivative citizenship is extremely complex. In fact, with the exception of the current birthright-citizenship presumption, all of U.S. immigration and nationality law is tremendously complicated, such that many people who are derivative U.S. citizens—and many of their lawyers—do not know it; or, if they know, have trouble getting documents proving that they are citizens. Naturalization is an option for some, but naturalization usually requires a person first to immigrate legally to the United States, and immigrating legally to the United States has in recent decades become a process of great difficulty and complexity that is unattainable by most people.

Eliminating the birthright citizenship rule would affect not only the citizenship of the children of unauthorized immigrants, but the citizenship of the children of more than three hundred million American citizens. After the elimination of birthright citizenship, all American parents would, going forward, have to prove the citizenship of their children through a cumbersome bureaucratic process. The United States has no national registry of its citizens, and most Americans today rely on the birthright citizenship rule to establish their citizenship. Documents evidencing birth in America are created by thousands of state and local governmental entities as well as the Department of Homeland Security and the Department of State. In Barack Obama's case, for example, his birthright citizenship is proved by means of a birth certificate issued by the State of Hawaii and showing his birth in Honolulu; he subsequently obtained a U.S. passport. Many Americans, however, do not routinely obtain any Federal governmental documents—such as a passport—confirming their citizenship status. A survey by the Brennan Center at New York University found that more than 13 million American adults cannot easily produce documentation proving their citizenship. At least birthright citizenship can be proved by producing a valid U.S. birth certificate, something that most birthright citizens can obtain without too much expense or difficulty if they are forced to do so.

If birthright citizenship were eliminated, however, those born in the United States would lose their access to easy proof of citizenship. Instead, they would find it necessary to turn to the exceptionally complex U.S. rules for citizenship by blood (the majority would be unable to qualify for the immigrant visas necessary as a prerequisite for citizenship by naturalization). Yet the rules for derivative citizenship are so complicated that it can take an experienced immigration attorney more than an hour to determine whether someone is a U.S. citizen by derivation. The lawyer must inquire about grandparents as well as parents, about marriage dates and the birth dates of ancestors, about the place of birth, and about the time that one's parents or grandparents spent in the United States prior to one's birth. John McCain, for example, was not born within the United States, but in the unincorporated territory of Panama. In order to prove his U.S. citizenship, he has had to show much more than just his birth certificate. In some cases, whether one's parents were married or unmarried at the time of one's birth makes a difference in determining U.S. citizenship. The determination can also be affected by whether one's U.S.-citizen parent was male or female. As a result of the U.S. Supreme Court's decision in Nguyen v. INS, for example, the children of American men cannot claim U.S. citizenship as easily as the children of American women.

Over more than 200 years of U.S. history, Congress has been responsible for creating the jus sanguinis rules in America, and Congress has made them so complicated that determining whether someone is a U.S. citizen by blood is sometimes the equivalent of figuring out whether a patent application is valid. Should we rid ourselves of the birthright citizenship presumption, we will be replacing a simple rule for most people with one that will be tremendously complex, as our current jus sanguinis rule is.

Under the birthright citizenship presumption in effect today, most Americans—but not all—have it much easier than the minority who are derivative citizens. The hundreds of thousands of Americans born every year overseas—the children of military personnel deployed abroad, missionaries, oil company employees, or Americans who choose to have their children in another country while visiting there—must undergo a complex individualized assessment of their status. The State Department and the Department of Homeland Security charge substantial fees to make derivative citizenship assessments (the current DHS fee is $460 )—and, depending on the facts, the assessment can take weeks or even years, and require production of numerous documents, including very old historical records.

So what would it mean, as a practical matter, to eliminate birthright citizenship? Presumably, we would have to create a national registry of citizens. All persons born in the United States—at thousands of localities, hospitals, midwiferies—would have to have their citizenship adjudicated. An expert would have to do the adjudication—most probably a trained government immigration attorney—unless we allowed these complex adjudications to be made by random bureaucrats. Finding such attorneys is very difficult today, but would likely become even more difficult, in that immigration and citizenship law is a field that a government immigration spokesperson has accurately called "a mystery and a mastery of obfuscation." Eliminating birthright citizenship would require the government to hire hundreds if not thousands of immigration attorneys or similarly skilled immigration examiners.

The elite of American society would not be affected much by the elimination of birthright citizenship. A change in the current system would cause little trouble for those who have the money to hire highly trained lawyers to handle their paperwork. The burden of proving citizenship would likely fall mostly on the less-favored elements in society. One of the little-known facts of U.S. immigration law is that the U.S. government frequently deports U.S. citizens by mistake. Any experienced immigration lawyer has stories of U.S.-citizen clients who have been deported. These citizens are mostly the less-favored in our society—the poor, the uneducated, the mentally disturbed, and minorities. This trend would accelerate if we eliminated birthright citizenship.

One test of any public policy proposal is whether the benefits of the policy are likely to outweigh the costs. Here, there is no question that proponents of changing the current default rule have not made even a marginal case on policy grounds. They cite vague policy reasons for changing the law, such as the need to stop illegal immigration, make U.S. citizenship "more valuable," or stop what they term an "industry" of women coming to the United States to have babies. They also seem to assume, without benefit of any hard data, that the United States does not benefit from birthright citizenship. And yet there is ample evidence that hundreds of thousands of birthright citizens have made and continue to make tremendous contributions to American society every day, serving in our military and in public office (for example, Senator Pete Domenici is perhaps the most famous "anchor baby" in America).

Opponents of birthright citizenship also assume—again without supporting data—that illegal immigration would lessen or even stop if birthright citizenship were eliminated. Although there may be some people who might be deterred from coming to the United States if birthright citizenship were eliminated, instead of reducing the number of illegal migrants within our borders, changing the current rule would automatically make even more people into illegal migrants. We know from European and Asian experiences with jus sanguinis rules that eliminating jus solis does not stop illegal immigration, but does increase the number of illegal aliens within a country, because fewer people are able to gain legal status.

While opponents of birthright citizenship assume without facts that their rule will do some good, we have compelling reasons to believe that bad things would occur if we eliminated birthright citizenship:

• We would be imposing a significant burden on all Americans, who would no longer have an easy and inexpensive way to prove their citizenship. The bureaucracies that increasingly demand and provide proof of U.S. citizenship would face an overwhelming burden.

• We would have thousands of children born every year in the United States with no citizenship in any country. To cite just one group, under proposed Congressional legislation to eliminate birthright citizenship, the U.S.-born children of asylees and refugees would have no citizenship. They would be left without a country, creating an underclass of "exploitable denizens." This is what has happened in countries that do not have a jus solis rule. Changing our rule would contribute heavily to the current global population of stateless people. We as a nation, though, profess that people have a human right to have a country. Furthermore, such a change would be punishing children for something that their parents did or failed to do; another position many Americans would find problematic.

• Eliminating birthright citizenship would be un-American. Birthright citizenship is part of our unique American heritage and a rejection of the philosophy of the oft-condemned Dred Scott decision. The Dred Scott case sought to deny U.S. citizenship to a class of persons who had been born within the United States, and was rightly overturned—after the Civil War—by the Fourteenth Amendment. With the exception of the brief and bloody period between the Dred Scott decision and the ratification of the Fourteenth Amendment, birthright citizenship has been the rule since the dawn of the Republic. We should have a compellingly good reason to eliminate it—one better than frustration with the federal government's inability to enforce existing immigration laws.

The policy arguments in favor of retaining birthright citizenship are very strong. The policy arguments against it are weak. Even if we believe that it is possible to interpret the Fourteenth Amendment differently than we have been interpreting it for more than a hundred years, it is not clear why we would want to do so. Trading an easy and egalitarian birthright-citizenship rule for one that would cause hardship to millions of Americans is not a smart way to approach our complex immigration problems

Margaret D. Stock is an attorney in Anchorage, Alaska; a Lieutenant Colonel in the Military Police Corps, U.S. Army Reserve; and an Associate Professor (Drilling Individual Mobilization Augmentee) assigned to the Dept. of Social Sciences, U.S. Military Academy, West Point, New York.

[Heracles 417]

We would be imposing a significant burden on all Americans,

They'd be citizens of their parents country - end of story. What about the financial burden Ms lawyer from Alaska? Or is the tens of billions wasted on illegal aliens each year, rather than being invested on Americans insignificant to people like herself?

The policy arguments against it are weak

This sort of idiocy cannot be debated using reason because any attempt to do so is ignored. Especially with those ignoring the reality that the rest of the first world changed their Constitution to ensure citizenship is not exploited by those who want to anchor their babies. Nope dont care about that right? "This is America Damnit!"

Now lets get back to talking about the health care of these same countries..

Edited August 8, 2010 by Heracles

[Atencio 43]

We would be imposing a significant burden on all Americans,

Especially with those ignoring the reality that the rest of the first world changed their Constitution to ensure citizenship is not exploited by those who want to anchor their babies. Nope dont care about that right? "This is America Damnit!"

Now lets get back to talking about the health care of these same countries..

Again you harp on the what the rest of the world is doing as if that is a mandate for us to follow.

[DEDixon 39]

Again you harp on the what the rest of the world is doing as if that is a mandate for us to follow.

he is doing this partly because the OP did it with health care.

[Mr. Big Dog 10,747]

Steve, I see you're still selling on this issue and, alas, I still ain't buying. I have yet to hear anyone demanding that the acquisition of citizenship by birth on US soil is to be changed retroactively. That would indeed be a painful exercise for a large number of people. But that's not what's on the table - that would indeed be more impractical as the proposed deportation of all illegal aliens currently in the US. You're doing with this debate what the anti health care reform crowd did to the health care reform by bringing up the NHS over and over again - even though that system is the one that has nowhere actually been pondered as a model for the US health care system.

[Heracles 417]

Again you harp on the what the rest of the world is doing as if that is a mandate for us to follow.

Intelligent countries and people tend to learn from others that are doing something well. Like if I was to build a computer, I would want to learn from Microsoft and Apple. You on the other hand would copy the Commodore 64, Atari and Amiga.

I don't know about you, but I certainly would never want my country to be exploited like the US is now.

[Atencio 43]

Intelligent countries and people tend to learn from others that are doing something well. Like if I was to build a computer, I would want to learn from Microsoft and Apple. You on the other hand would copy the Commodore 64, Atari and Amiga.

Yes Microsoft builds some fine computers. That explains so well your answers to other questions.

[Heracles 417]

Yes Microsoft builds some fine computers. That explains so well your answers to other questions.

Yes software, a critical part of any PC.

[slim 1,514]

I don't think we need a constitutional amendment at all. We simply need SCOTUS to review the wording and determine the jurisdiction of illegals.

Maybe this is why Obama brought in Sotomayor.

Edited August 8, 2010 by slim

[mawilson 2,133]

Un-American, perhaps, but I don't buy the "significant burden" argument.

The burden is checking an extra box on your passport application to specify which one

of your parents is a US citizen and their passport number(s) (or birth certificate(s)

if they have don't have a passport.)

The UK once granted citizenship to anyone born on UK soil. However, in 1981-83,

the laws were changed to where a child has to be born to a person of "legal resident"

status. Here's what the passport application now says:

• If you were born in the UK before 1983, IPS needs to see your UK national identity card or your birth or adoption certificate.
  
• If you were born in the UK on or after 1 January 1983, IPS needs to see your UK national identity card or your full birth or adoption certificate showing your parents' details and one of the following:
  
  • your mother's UK birth certificate, Home Office certificate of registration or naturalisation, or her passport that was valid at the time of your birth
    
  • your father's UK birth certificate, Home Office certificate of registration or naturalisation, or his passport that was valid at the time of your birth and your parents' marriage certificate
    

IPS may ask for further documents relating to your parents.

link

Is that a significant burden?

[mawilson 2,133]

Intelligent countries and people tend to learn from others that are doing something well. Like if I was to build a computer, I would want to learn from Microsoft and Apple. You on the other hand would copy the Commodore 64, Atari and Amiga.

Hey, don't knock Amiga - AmigaOS inspired many developers who then went on to build

more advanced operating systems.

MacOS X, the OS used by Apple, is based on Darwin which is a fork of FreeBSD.

DragonFly is another fork of FreeBSD, which was started by a long-time FreeBSD

and Amiga developer, and inspired by AmigaOS.

[Ban Hammer 12,876]

You on the other hand would copy the Commodore 64, Atari and Amiga.

until about 5 years ago, the military was still using amigas to run some simulations.

[one...two...tree 2,762]

Steve, I see you're still selling on this issue and, alas, I still ain't buying. I have yet to hear anyone demanding that the acquisition of citizenship by birth on US soil is to be changed retroactively. That would indeed be a painful exercise for a large number of people. But that's not what's on the table - that would indeed be more impractical as the proposed deportation of all illegal aliens currently in the US. You're doing with this debate what the anti health care reform crowd did to the health care reform by bringing up the NHS over and over again - even though that system is the one that has nowhere actually been pondered as a model for the US health care system.

There is no economic nor ethical reasoning to change the jus soli rule of citizenship, and doing so, as the OP argued would make create a lot of problems. It's dangerous ground to meddling with the 14th Amendment from a simple method of citizenship to something much more complicated.

As for making the argument that some foreigners are coming here just to have a child born on U.S. soil, reminds me of similar arguments made against welfare - that women are having babies to get more benefits. Most of the population growth in this country is coming from immigrants (both legal and illegal), and to the Nativists, this is alarming. If our aim is reducing illegal immigration in this country, then the focus should be on how to make it legal for those who want to come here to work. All these other measures like changing the 14th Amendment are draconian and quite frankly unAmerican. We are nation of immigrants and we should never lose that unique quality that makes America, America.

[Atencio 43]

Yes software, a critical part of any PC.

Loaded up long after the computer is built Jr. Try again.

[mawilson 2,133]

If our aim is reducing illegal immigration in this country, then the focus should be on how to make it legal for those who want to come here to work.

Billions of people want to come here to work. Do you want to accommodate all of them?