Lawmakers Target Citizenship by Birthplace

Their approach is a lot less sweeping than many had predicted. One of its backers admitted that, for the time being anyway, the proposals would have “very little practical effect.” But the goal is to try to force the hand of Congress or the courts to take a new look at the 14 ^th Amendment to the U.S. Constitution.

The supporters claim the post-Civil War amendment has been misinterpreted — a point fiercely contested by advocates for immigrants — and that their efforts would simply reverse that interpretation. But if those efforts prevail, it would mean the reversal of policies used to determine U.S. citizenship for generations.

“This is a technical, legal method of having the Supreme Court review, once and for all, the phrase in the 14 ^th Amendment. It’ll have a dynamic effect if we get the court review we want and the proper interpretation of the 14 ^th Amendment,” explained Arizona state Representative John Kavanaugh, a Republican.

The phrase in question is in the first sentence of the amendment, which confers U.S. citizenship on anyone born in the United States who is “subject to the jurisdiction” of the country’s laws. Kavanaugh and other advocates claim that people in the country illegally are not “subject to the jurisdiction” of American laws, because they cannot, for example, be drafted into the armed forces or be charged with treason against the United States.

The coalition, under the banner of a group called the State Legislators for Legal Immigration, proposed two relatively obscure ways of forcing the issue, which, asStateline reported earlier , is likely to occupy legislators in several states in their coming spring sessions.

The first would be for states to set up criteria for state citizenship, a designation that has fallen out of use for the last century. The model law would set up no benefits for getting state citizenship — in fact, it specifically denies granting any new rights for state citizens. But, in setting up qualifications for citizenship, the law would include a definition of the phrase “subject to the jurisdiction of the United States” that runs counter to the current interpretation of the 14 ^th Amendment.

The second proposal would create a multistate compact, which would require the approval of Congress but not the president. If it took effect, participating states would issue two separate kinds of birth certificates, one for the children of a U.S. citizen or legal permanent resident and the other for the children of undocumented immigrants. Only children born to parents living in the country legally would get birth certificates calling them “natural-born” U.S. citizens.

Of course, the real impact of the multistate compact is that it would give the standards the weight of federal law, said Kris Kobach, the incoming Kansas secretary of state, who as a constitutional lawyer helped draft and defend anti-illegal immigration laws for states and cities across the country. By approving the compact, Congress, in effect, would be approving new citizenship standards.

Oklahoma state representative Randy Terrell, the Republican who sponsored that state’s comprehensive anti-illegal immigration bill in 2007, called the issue of birthright citizenship the “holy grail of illegal immigration.” Although Terrell said the movement had the support of legislators of both parties, only Republicans appeared at the press conference. South Carolina state Senator Danny Verdin compared the granting of citizenship to the children of illegal immigrants to slavery. He called both “maladies.” 

Verdin said slavery was considered a “benign” malady when the Constitution was adopted but it turned out to be catastrophic. “We do not want to see that again in this country,” he said. “We have a situation with anchor babies, birthright citizenship, that a few decades ago may have been considered benign because it was not that impactful. But today it is.”

Verdin’s comments sparked the first of several disruptions of the presentation by opponents of the proposal. Later Benjamin Johnson, executive director of the American Immigration Council, also criticized the package. “The proposal presented today is clearly unconstitutional and an embarrassing distraction from the need to reform our nation’s immigration laws,” he said in a statement. “It constitutes a vicious assault on the U.S. Constitution and flies in the face of generations of efforts to expand civil rights.”