While in Congress I supported legislation aimed at ending the practice of giving automatic citizenship to children born to parents who are illegal aliens. Those bills never got a hearing or came to a vote, but suddenly there is widespread interest in the topic. What has changed?
The topic is in the news in part because of a report from the Pew Hispanic Center showing that 340,000 anchor babies were born in 2009 and constitute 8 percent of all live births nationally. We have over 4,000,000 anchor babies under the age of 18. Such reports put numbers on a problem that has been festering for decades.
Birthright citizenship is not allowed in Mexico, or in South Africa, France, Germany, Japan or China. In fact, it is allowed almost nowhere except the United States. Yet, Americans are told that ending this practice would be "racist." So, why the sudden interest in the issue by liberals?
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Open-borders advocates like South Carolina Sen. Lindsey Graham see the proposal to end birthright citizenship for children of illegal aliens as a bargaining chip to get Republican support for amnesty legislation. That's a bad bargain Americans should reject.
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Graham thinks the 14th Amendment to the Constitution must be amended to tackle the anchor-baby problem. He's wrong, and it's a bad idea for several reasons.
Leading constitutional scholars like John Eastman, Dean of the law school at Chapman University, say it's not necessary to amend the 14th Amendment because birthright citizenship for children of foreign nationals is not in the 14th Amendment in the first place. An honest examination of the legislative history of he 14th Amendment reveals that the authors never intended it to cover foreign nationals. Therefore, amending the Constitution is unnecessary. All we need to do is pass a law clarifying the matter.
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Yes, we all understand that such an act of Congress will then be challenged by the ACLU and National Council of La Raza and will be appealed all the way to the U.S. Supreme Court. However, it will surprise many people to learn that the Supreme Court has never dealt with this question directly. Only one case late in the 19th century dealt with citizenship of children of immigrants, but that case involved a legal immigrant, not an illegal alien. So, let's pass the law and let the Supreme Court deal with it.
The needed legislation will simply state who is eligible for birthright citizenship, not who is excluded. U.S. citizenship at birth should be awarded only in cases where at least one parent is a citizen or a Legal Permanent Resident. This would end the practice of giving citizenship to children born to tourists, business travelers, foreign students, guest workers and illegal aliens.
A second reason for not going the constitutional-amendment route is that it concedes a false interpretation of the Constitution and the 14th Amendment. A constitutional amendment is a long and arduous process requiring the approval of two-thirds of both houses of Congress and three-quarters of the states. A constitutional amendment is a last resort to be used only if a new law is invalidated by the Supreme Court.
But the best reason for avoiding the constitutional-amendment path is that it is a transparent political trap. Why should anyone support an amnesty bill for the mere prospect of a successful constitutional amendment?
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If the proponents of the constitutional-amendment path were serious and honest in their intentions, if they truly believe that the award of birthright citizenship to children born to tourists and illegal aliens ought to be ended, they would move that proposal forward immediately as sound public policy without a link to amnesty legislation. If the amendment were actually ratified by the states and became part of our Constitution, that could be seen as a good faith gesture to open an honest debate on true immigration reform.
Instead, what we see is a charade in which amnesty proponents pretend to support a constitutional change in order to move their amnesty bill forward. Everyone understands that as soon as an amnesty bill is enacted, the constitutional amendment would be abandoned.
That charade is similar to other bait-and-switch tactics used by amnesty crowd. You want border security? We'll give you improved border security as part of an amnesty package. Of course, achieving border security would take three to five years from the moment we decided to get serious about it, and the undertaking could be sabotaged at any moment by denying the needed annual appropriations. That is exactly what happened to the Secure Fence Act of 2006. In 2007 the double-layer fence authorized by the Secure Fence Act was defunded and converted into "tactical infrastructure."
We can and should end the anchor-baby scandal in the next session of Congress, but we do not need a constitutional amendment to do that.
