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Birthright Citizenship, “Anchor Babies” and the 14th Amendment

by JULIA NISSEN

Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC) appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves.

Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution.

Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship).“Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations.

The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8 per cent of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.”

The 14th Amendment

The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states that “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.” The clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected.Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause.

In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act.

Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.”

“Anchor Babies”

Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed. Thus, as Roberto Suro, a communications and journalism professor at University of Southern California, has stated, “It is a hell of a lot of deferred gratification at best.”

The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status.The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants.

Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.”On April 14, 2010, an ABC article raised the issue of “birth tourism,” a trend in which wealthy foreigners come to have children in special American-based resorts so that their children will gain American citizenship. The article questions the legitimacy of the 14th Amendment in light of these trends, but has received criticism due to its misrepresentation of certain facts. Birth tourism made up about two-tenths of 1 per cent of all births in 2006. Furthermore, these affluent non-natives have little in common with the undocumented immigrants primarily targeted by attacks on the 14th Amendment.

As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life.According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism.

On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status.

No data have been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.”

Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.”

What This Means for the Immigration Debate

As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support.

But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases.

JULIA NISSEN is a research associate at the Council on Hemispheric Affairs.

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