Birthright citizenship

Let’s talk birthright citizenship. The concept comes from the Fourteenth Amendment:

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

Citizenship by birth is conferred upon the newly born under two policies: jus soli and jus sanguinis. The first means "right of the soil", citizenship by place of birth. The second means "right of the blood", citizenship determined by the citizenship of your parents. The first makes determining citizenship rather easy. The second, on the other hand, not so much, because of potential conflicts with birthright citizenship laws in other countries.

The problem with the latter has been especially noted between the United States and Canada, wherein patients in Canadian hospitals experiencing a difficult childbirth could be transferred to a hospital in the United States for better emergency care. The child then born in an American hospital is a citizen of the United States under the Constitution, but there is also a competing declaration of citizenship under Canadian law because the child was born to Canadian citizens in a foreign country. This problem has created a phenomenon known as "Lost Canadians".1

The same is true of a child born to United States citizens in Canada. For example a woman who has progressed about 7 1/2 months through a pregnancy is travelling in Canada when she experiences unexpected complications requiring admission to a local Canadian hospital. There the attending physicians determine that an early delivery must be performed to ensure the best chance of the infant surviving. To maximize this chance, the physicians highly stress against attempting to transfer to a hospital in the United States. The pregnancy is delivered in a Canadian hospital. Under Canadian law, the child is a Canadian citizen. Under US law, the child may also be an American citizen.

The United States Code establishes several definitions by which a person born outside of the United States is still a citizen of the United States under the concept of jus sanguinis.234 An orphaned child under the age of five years discovered within the United States is also presumed to have been born within the United States, and thus a natural-born jus soli citizen, unless evidence obtained and presented prior to the individual’s twenty-first birthday can show that the child was not born in the United States.5

Then we have what has been called an "anchor baby".

Now conservatives would like to "restrict" birthright citizenship as a way to counter illegal immigration because of so-called "anchor babies". It is the fallacy behind this idea6 that has resulted in numerous attempts at the Senate and House of Representatives to restrict birthright citizenship by amending the United States Code. That’s right, they want to restrict something defined by the Constitution by passing a law: the Birthright Citizenship Act of 2011.

Now before getting into this particular law, let’s provide some clarification. The Fourteenth Amendment states a minimum subset of the population of the world that are citizens of the United States: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof". This is jus soli citizenship, as explained earlier, and Federal law implements this definition in the United States Code7. But the Constitution provides Congress the power to "establish a uniform rule of naturalization"8, which includes the ability to declare who else beyond the minimum definition established by the Constitution may also be citizens. And, as described earlier, Congress has implemented additional definitions beyond the minimum definition of the Constitution.

But of those persons born in the United States, Congress cannot restrict their citizenship or their ability to assert citizenship. Can they be deported to the countries of their parents? Representative Duncan D. Hunter (R-CA) would like to think so.9 And there are reports that this is actually occurring, where natural born citizens of the United States are being deported. One case that gained some notoriety is that of Helen Mejia-Perez, born in Novato, California, in 1996.10

The question for some reason seems to surround "subject to the jurisdiction thereof". Here’s a simple question: who is "subject to the jurisdiction" of the United States? The answer is just as simple: anyone within the jurisdiction of the United States is subject to the jurisdiction of the United States except those specifically exempted. So by deporting United States citizens, you remove them from the jurisdiction of the United States. The question of whether this is legal is still up for debate. Many contend that deporting citizens, regardless of the immigration status of their parents, is illegal, and I join that opinion.

Let’s throw out a hypothetical, but first let’s fast forward a couple years. Prince William and Princess Katherine are traveling through the United States while the Princess is pregnant with their first child. She’s coming close to her due-date, but they feel they still have plenty of opportunity to travel for a regalia in the United States before going back to London. The baby, however, decides to surprise them and Katherine goes into labor early and gives birth at an American hospital. Is that child a citizen of the United States? No. The reason is quite obvious: as diplomatic guests to the United States, William and Katherine would have diplomatic immunity, and this immunity is automatically conferred upon any children they have, whether born in the United States or not. That diplomatic immunity also means the child is not subject to the jurisdiction of the United States and cannot be declared a citizen of the United States unless the child emigrates and is naturalized.

Representative Steve King of Iowa and Senator David Vitter of Louisiana want to redefine the applicability of the jurisdiction phrase through the Birthright Citizenship Act of 2011, introduced as HR 140 and S 723 respectively. This is a law seeking to redefine a phrase present in the Constitution and mirrored by the US Code. Basically what the law seeks to do is say, in essence, that a person is subject to the jurisdiction of the United States, in terms of the Citizenship Clause in the Fourteenth Amendment, only if "the person was born in the United States of parents, one of whom is":

  1. a citizen or national of the United States;
  2. an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
  3. an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).

Basically through an ordinary statute, Congressman King and Senator Vitter seek to redefine a phrase in the Constitution. Now this isn’t the first time such an attempt has been made, and, as can be readily assumed, all prior attempts have failed. But even if it were to succeed, and be signed into law by the President, something tells me that this would not withstand Court scrutiny. After all, if you want to redefine the Constitution, you refine the Constitution through an Amendment.

If you were born in the United States to parents who are not immune to the jurisdiction of the United States, you are a citizen. If you want to limit the applicability of birthright citizenship with regard to children of illegal immigrants, you basically have to grant all illegal immigrants immunity from the laws of the United States and all jurisdictions therein. Imagine the chaos such a notion would create.

The Supreme Court of the United States clarified birthright citizenship in the 1898 case of United States v. Wong Kim Ark, 169 US 649:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution

While the text of the decision is written in terms of a child of Chinese immigrants, it applies easily to any person in the United States. The words "permanent domicile" are especially important, as this basically means that the child has to be born to parents who intend to stay in the United States, but note that nowhere in the decision is any distinction made about the immigration status of the parents.

In Perkins v. Elg, 307 US 325 (1939), the Supreme Court ruled that a child born to foreign nationals in the United States is a natural born citizen of the United States. That child does not lose his/her US citizenship if removed from the United States by his/her parents provided that upon reaching the age of majority the person returns to the United States to assert their citizenship and assume its duties. This means that in the aforementioned case of Helen Mejia-Perez, Helen can, upon reaching the age of majority, return to the United States and assert her citizenship as a natural-born citizen of the United States.

Oddly enough, Senator Vitter has also introduced a Senate Joint Resolution calling for amending the Constitution to clarify the Citizenship Clause of the Fourteenth Amendment.11 So Senator Vitter understands that an ordinary statute may not do the trick. The language of the proposed amendment, currently stalled in the Senate Judiciary Committee, mirrors the language of the Birthright Citizenship Act which he recently introduced in the Senate.

An Amendment to the Constitution is the proper path to clarify birthright citizenship, and the most recently proposed amendment will restrict jus soli citizenship in very clear terms while not overriding the jus sanguinis citizenship that the United States Code currently permits. It will mean that Canadian pregnant women transferred to American hospitals will give birth to children who will not automatically have American citizenship. And it will mean that children born to illegal immigrants will not automatically have citizenship in the United States, but absent jus sanguinis laws of the country where the child’s parents originated, may instead be born without country.

References   [ + ]

1. Lost Canadians. (2011, March 29). In Wikipedia, The Free Encyclopedia. Retrieved 21:31, April 10, 2011, from http://en.wikipedia.org/w/index.php?title=Lost_Canadians&oldid=421318808
2. 8 USC 1401(c)
3. 8 USC 1401(d)
4. 8 USC 1401(g)
5. 8 USC 1401(f)
6. Anchor baby. (2011, April 9). In Wikipedia, The Free Encyclopedia. Retrieved 19:44, April 10, 2011, from http://en.wikipedia.org/w/index.php?title=Anchor_baby&oldid=423219740
7. 8 USC 1401(a)
8. Constitution of the United States, Article I, Section 8
9. Frumin, Ben. (28 April, 2010). "GOPer: I Support Deporting American Citizens Whose Parents Are Illegal Immigrants". Talking Points Memo.
10. "Tell President Obama and Senator Feinstein to immediately halt the deportation of the Mejia-Perez family" posted November 3, 2009, to the blog NYSYLC.
11. 112th Congress, Senate Joint Resolution 2