In Citizenship? Part I, Fuscaldo begins to discuss the 14th amendment.
We continue his essay with executive law, congressional acts, and some historic background.
by James Fuscaldo (continued)
Executive / Administrative Policy on Birthright Citizenship
Advocates for granting automatic citizenship to children born to illegal aliens or temporary nonresident aliens (guest workers) living in the United States always focus on the first requirement of birth.They allege birth on United States soil alone guarantees United States citizenship. These advocates also argue that the phrase “subject to the jurisdiction” simply means being susceptible to police authority (i.e. being required to follow American laws, pay fines for violations and be subject to the police powers of the Federal and State Courts). This interpretation creates a redundancy in the Fourteenth Amendment.
All people born in the United States are subject to the laws of the United States. Accepting the argument that the phrase, “subject to the jurisdiction thereof”, simply means subject to police power turns a critical and carefully written Citizenship Clause of the Constitution into a redundancy. It also gives the Clause an interpretation that is contrary to the recorded Congressional debate before its adoption, and to the principles of legislative construction and interpretation.
According to Supreme Court decisions constitutional and statutory interpretation requires one to view each clause as a distinct and separate requirement. A jurist would not read a redundancy into a statute or constitutional provision. Courts give effect to every clause and word and avoid any construction which implies that the legislature was ignorant of the meaning of the language and words it employed.
Statutes and constitutional provisions are construed to avoid rendering superfluous or redundant statutory or constitutional meaning. “Courts will avoid adopting a statutory or constitutional construction when doing so would render the statute or constitutional provision superfluous, or create an interpretation contrary to the expressed intent of the legislators set forth in the legislative or congressional debates.” (Public Citizen v. U.S. Dept. of Justice, 492 U.S. 440 (1989); United States v. Cook, 594 F3d 883 (D.C. Circuit 2010))
The Supreme Court weighed in on the meaning of the phrase, “subject to its jurisdiction” in a case not dealing specifically with birthright citizenship. The Court said, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States” (Slaughter-House Cases, 83 U.S. 36,1873). This interpretation is consistent with the Congressional floor debate on the meaning of the phrase “subject to the jurisdiction thereof” that took place before the adoption of the Citizenship Clause of the Fourteenth Amendment.
Circuit Court Judge Richard Posner held in Oforji v. Ashcroft, 354 F3d, 609, (2003) that the policy of granting automatic birthright citizenship to children of illegal and temporary aliens is one that “Congress should rethink”, and that the United States, “should not be encouraging foreigners to come to the United States to enable them to confer United States citizenship on their children”.
Effect of Common Law Birthright Citizenship
Those who support birthright citizenship look to English common law in support of their argument that the place of birth is to be the sole determinate factor in determining citizenship. The common law of birthright citizenship was first articulated in 1608 in Calvin’s Case. Sir William Blackstone in his Commentaries on the Laws of England articulated the idea of birthright citizenship evolving from, and an essential element of, the feudal system.
The phrase birthright citizenship is derived from birthright subject-ship or birthright allegiance. A phrase used to describe the perpetual allegiance to the King of England and owed as a debt of gratitude to the King in medieval times by anyone born within the realm. It evolved from mutual trust, reciprocal responsibilities and obligations between the King his lords and vassals of the land. Blackstone said, “The concept of natural allegiance and birthright citizenship resulted from all men being born within the King’s dominion. It cannot be forfeited, canceled, or altered by any change of time, place or circumstance.” He also stated, “The natural born subject of one prince cannot by any act of his own… by swearing allegiance to another put off or discharge his natural allegiance.” Birthright subject-ship (citizenship) under English common law is the doctrine of perpetual and irrevocable allegiance and subservience to the King.
Blackstone’s view of birthright subject-ship (citizenship) is based on an indefensible feudal doctrine of indefeasible allegiance. It is incompatible with personal liberty and freedom recognized as an unalienable right among men that is derived from the laws of nature and of nature’s God. Some may argue or raise the question, “haven’t we adopted the common law of England” ?
Declaration of Independence Rejects Birthright Subject-ship
The Declaration of Independence specifically stated, “That these United Colonies are, and of right ought to be free…, and that all political connection between them and the State of Great Britain is and ought to be totally dissolved…” The natural right to revolution was also set forth in the Declaration, “When… It becomes necessary for one people to dissolve the political bands which have connected them with one another, and to assume … the separate and equal station to which the Laws of Nature and Nature’s God entitle them…” clearly established the basis for the rejection of perpetual and irrevocable birthright subject-ship (citizenship) and perpetual allegiance and subservience to the British Crown. Thomas Jefferson, in his Summary View of the Rights of British America stated, ” all men possessed the natural right to leave the country where chance and not choice had placed them.”
James Wilson, a signer of the Declaration of Independence and a member of the Constitutional Convention as well as a Supreme Court Justice said, “The transformation of subjects into citizens was the work of the Declaration and the Constitution. Both are premised on the idea that citizenship is based on the consent of the governed (i.e. Congress), not the accident of birth”.
The idea of birthright subject-ship (citizenship) is fundamentally contrary to the principle of personal liberty that guided the drafting and acceptance of the Declaration of Independence, the Articles of Confederation and the United States Constitution.
Congressional Authority to Define the Scope of Birthright Citizenship:
Section 5 of the Fourteenth Amendment states, “The Congress shall have the power, to enforce, by appropriate legislation the provisions of this Article.” Consequently, Congress has the expressed constitutional power to define who is properly “within the jurisdiction of the United States” for purposes of determining United States citizenship.
As part of the current debate on immigration reform, Congress should draft legislation that would codify the clear intent of the framers of the Fourteenth Amendment. New legislation should expressly supersede the executive branch’s current practice of granting birthright citizenship to children born in the United States to parents who are illegal aliens or temporary nonresident aliens (guest workers).
We have already given examples of Supreme Court cases that have validated the framers original interpretation and purpose of the phrase “subject to the jurisdiction”, and have recognized the authority of Congress to interpret its meaning with legislation. An alien’s renunciation of his allegiance to a foreign country while present within the boundaries of the United States does not make the alien “subject to the jurisdiction” of the United States for citizenship purposes solely because of the renunciation and his presence on United States soil.
In the case Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court decided that a native Indian who had renounced allegiance to his tribe did not become “subject to the jurisdiction” of the United States because of the renunciation. The court stated, “The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States signified either by treaty or legislation.”
Neither the Indian tribes nor members of those tribes, nor other citizens of foreign nations can become citizens of the United States by their own will. In 1923 the Congress eventually extended offers of citizenship to various Indian tribes through appropriate legislation.
This clearly evidences the authority of Congress to define for citizenship purposes those who are within the jurisdiction of the United States. Congress also has the sole authority to define the rights of children born in the United States to illegal aliens or temporary nonresident aliens (guest workers) living in the United States, or those aliens who are in the country lawfully for a limited time and purpose through student or tourist visas.
In 1993, Senator Harry Reid of Nevada introduced Senate Bill 1351.The Bill would amend the Immigration and Nationality Act to conform with the legislative history and intent of the Citizenship Clause of the Fourteenth Amendment. The following provision in the Bill would limit citizenship to those whose mothers are United States citizens or legal permanent residents.
“TITLE X CITIZENSHIP 4 SEC. 1001. BASIS OF CITIZENSHIP CLARIFIED In the exercise of its power under section of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of Section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth”.
This Bill died in Committee. Why?
Extent of Birthright Citizenship Recognition Globally
On a global basis only 30 out of 194 countries grant automatic citizenship to children of illegal aliens born within the country. Of all the countries listed by the International Monetary Fund as “advanced economies”, only the United States and Canada recognize automatic “birthright citizenship” to children born in the country to illegal aliens. There isn’t a European country that grants automatic citizenship to children of illegal aliens born within a European country. The United Kingdom consisting of Great Britain, Scotland, Ireland and Wales has rejected “birthright citizenship” even though it was once part of their common law heritage based on the medieval feudal concept of birthright subject-ship. Mexico does not grant birthright citizenship. Mexico grants nationality cards to those born in Mexico. When the child reaches the age of majority the adult (child) may apply for Mexican citizenship. This process is erroneously recognized by United States Immigration Authorities as equivalent to birthright citizenship from the time of birth.
Effect of Birthright Citizenship in the United States The population of children born in the United States to parents who are illegal aliens has expanded rapidly. The direct welfare benefits to the children of illegal aliens, and the indirect benefits to the illegal alien parents resulting from “birthright citizenship”, have attracted little or no attention in the debate on comprehensive immigration reform.
These welfare benefits include medical care, housing assistance, food stamps and free education. The Center for Immigration Studies reported that over 50% of households headed by an immigrant (legal and illegal) with children under the age of 18 used at least one welfare program. Households with children that have the highest rates of welfare use (more than 50%) are headed by immigrants from the Dominican Republic, Mexico, Guatemala and Ecuador.
When a “birthright citizenship” baby (“anchor baby”) becomes 18 years old it becomes eligible to participate in sponsoring family members as part of the current “chain migration” policy. An anchor baby may bring into the United States a foreign-born spouse and any unmarried children of his own. At the age of 21 an anchor baby can legalize its parents and any brothers or sisters.
The sponsored spouse can in turn sponsor its own foreign-born parents and siblings, and its siblings can in turn sponsor their own foreign-born spouses and so on.
Chain migration facilitated by “birthright citizenship” has created a never ending and ever expanding class eligible for immigration into the United States. It also expands the class of immigrants available to access welfare benefits. Welfare benefits are not generally accessible to illegal immigrants. However, use of the “birthright citizenship” policy enables illegal immigrants to obtain welfare benefits on behalf of the anchor baby. Family sponsored chain migration accounts for most of the nation’s increase in immigration. It is not illegal border crossing immigration.
Many of the welfare costs associated with illegal immigration are due to the “birthright citizenship” policy and, to a certain extent, the chain migration that results. Despite taxpayer funded welfare assistance, more than 60% of illegal aliens and their anchor babies live in or near poverty levels. It is important to note that the costs to support anchor babies directly, and their families indirectly, are not spread evenly among the states. The states closer to the southern border, and the states with a more temperate climate have a substantially greater percentage of illegal aliens dependent on social welfare benefits. States who depend on low cost migrant workers for seasonal labor also experience an incremental increase in the cost of their welfare benefits.
Effect of Chain Migration
United States immigration laws were amended in the 1950s to allow for the admission of extended family members that are not part of the immediate core family. As a result the average annual flow of immigration increased from 250,000 then, to over 1 million today. The ever-expanding chain migration operates independently of any economic downturn or labor needs. Family sponsored immigration initiated through “birthright citizenship” and “chain migration” brings in more immigrants than illegal border crossings. Ending or restricting chain migration would reduce the explosive growth in immigration.
Effect of Worker’s Visas
Politicians from both parties regularly call for increases in temporary worker visas. They never consider the economic and social effect of children born to these workers while they are in the United States. Until “birthright citizenship” is denied pursuant to the Citizenship Clause of the Fourteenth Amendment, and chain migration is restricted by Congress any large-scale guest-worker program will only result in thousands more children born in the United States claiming “birthright citizenship”.
If the guest-worker does not depart when the work visa expires the worker becomes an illegal alien and is subject to deportation. However, under current policy immigration authorities would not deport the guest-worker’s anchor baby. The result is the guestworker makes the case for indefinite stay based on the ‘compassionate’ principle of ‘keeping families together’. This argument is always successful in preventing an alien’s deportation when a worker’s permit or visa expires and an anchor baby is part of the guest-worker’s family. The unintended consequences of “birthright citizenship” is that a policy designed to bring in laborers on a temporary basis then becomes another channel for permanent immigration. It has been said, “There’s nothing more permanent than a temporary worker”.
The current “birthright citizenship” policy has created a new business model. It is a magnet for those seeking to add a valid United States passport holder to their family. An entire industry of birth tourism has been created whereby pregnant women travel legally to the United States on lawful visas or entry permits to give birth to their child in the United States. Once the birth of a child is recorded in the United States, the baby automatically qualifies for a United States passport.
Birth tourism is a lucrative business for lawful immigrants who facilitate the travel and birthing process for their former country men. Doctors, hotel owners and immigrant families with Middle Eastern background and connections in the United States have assembled a birth tourism assembly line. Medical centers in Arizona offer birth packages to expectant mothers recruited in Mexico. Chinese owned birth centers in California recruit pregnant women from Asia.
Obtaining a valid United States passport for their “anchor baby” facilitates “chain migration” or a permanent resident visa for the mother. Wealthy individuals take advantage of birth tourism to have less expensive education opportunities in the United States for their United States born children and siblings.
Public education in the United States is free. Birthright citizenship provides access to a college education in the United States and the benefit of resident instate tuition where available. It eliminates the need for a “foreign student” to compete for a student visa and qualify for a limited number of foreign student scholarships.
The United States Department of State is not permitted to deny a woman a temporary visitor visa simply because she is pregnant. Immigration authorities are less likely to deport a visitor who overstays their visa if they have a “birthright citizenship” child.
In the next part of the series, the conclusion, and a little more about the author.