Predictably, Mr. Trump’s first written policy document was a package of immigration reform proposals including an end to birthright citizenship.
Trump’s roaring pronouncements regarding this idea kicked off heated debate over so-called “anchor babies” who, because they were born in the US are American citizens even though their parents are citizens of other countries who entered the US illegally. Unfortunately, the debate has been heavy on emotion and fury but light on reason.
More on why they’re called anchor babies and why the nickname is misleading in a bit. First, the Constitution’s 14th Amendment. The first sentence is:
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.
This language was enacted in 1868, three years after the Civil War, primarily to protect black people, many of whom were recently freed slaves, from malicious schemes to deny their basic rights based on assertions they were not genuine citizens. This first sentence of the 14th Amendment was intended to make clear that they were citizens and thus entitled to all the rights and privileges of citizenship. In 1868 there were no “illegal immigrants” as we understand this term today, so the 14th Amendment’s authors may not have anticipated the concept of “anchor babies.”
We’ll discuss the qualifying clause “and subject to the jurisdiction thereof” below.
Why are they called “anchor babies”? A lot of people, perhaps including Mr. Trump, believe that the birth of a baby in the US is an immediate grant of immunity from deportation for the illegal immigrant parents and other family members. But this isn’t true. Under laws enacted decades ago a citizen must be at least 21 years old before he or she can apply for permission for parents or other family members to reside in the US legally. The process takes several years, the outcome isn’t guaranteed, and there’s an additional three year waiting penalty for family members who have previously lived here illegally.
Thus, reality completely debunks Trump’s assertion that the opportunity to give birth to an American citizen baby is “the biggest magnet for illegal immigration” drawing millions of people who otherwise would not have come across the border illegally. Most illegal immigrants are desperately poor, under-educated people, looking for immediate job opportunities and/or immediate government funded benefits. They do not see themselves as taking step one in an elaborate, high-risk, anchor baby scheme that won’t pay off for 25-35 years, if ever.
Now let’s look at the Supreme Court’s thin record of precedents regarding the first sentence of the 14th Amendment. On his Fox News program Bill O’Reilly thundered triumphantly at various guests that in a 1985 case, Immigration and Naturalization Service (INS) vs Rios-Pineda the Supreme Court had decreed that a child of an illegal immigrant born in the United States was a citizen.
However, Mr. O’Reilly vastly overstated his point. INS Vs Rios-Pineda was about an entirely different matter. Mr. Rios-Pineda and his wife were illegal immigrants who had applied for permission to remain in the US. Their application was denied and they had gone through several appeals over a period of six years, during which time they had had two children in the US.
But the Supreme Court case was not about the children. The question resolved by the Courts’ ruling was whether or not the US Attorney General had the authority to deny them yet another appeal. The Court’s opinion mentions the children in language called “dicta” because it’s incidental to the ruling and doesn’t become a precedent binding on lower courts in the future.
In fact, the court’s “holding” or it’s actual ruling, was that the Attorney General did have the authority to deny another appeal, resulting in immediate deportation of the family including the two citizen children. So the fact noted by the court that the children were citizens was irrelevant to the family’s fate. It didn’t help them at all.
Citizen children are routinely deported with their parents. They can stay here, separated from their parents, only if family members who live here legally are willing and financially able to take responsibility for them as guardians.
Another Supreme Court case fueling the TV shouting matches is United States Vs Wong Kim Ark, decided in 1898. But Wong, who contested actions taken against him by immigration authorities and won his case, was the son of LEGAL Chinese immigrants. Thus this case is not relevant to the anchor baby question.
Finally, more furious arguments in favor of Mr. Trump’s position come from commentators citing the qualifying clause mentioned above, “and subject to the jurisdiction thereof.” This language was intended to exclude a very small number of babies born to visiting foreign diplomats and a much larger number born to Indians who were considered citizens of their tribal nations, not the United States. But, since Indians were made full, unqualified, United States citizens by an act of Congress in 1924 this clause would seem to be moot today.
However, Mr. Trump’s supporters while admitting that illegal immigrants are “subject to” or must obey the laws of the United states, still claim they are still not “subject to the jurisdiction” because they don’t “owe allegiance” to the United States. This “owe allegiance” concept comes from Common Law, rooted in a past eras. Do American citizens “owe allegiance” in the same way as citizens of Kingdoms? Since we’re free to leave, free to renounce citizenship, free to become citizens of another nation it would seem that we don’t “owe allegiance.” Very few Americans abandon their citizenship, not because we “owe” something, but because we want to stay here.
In fact, the Supreme Court has never issued a ruling to directly answer the question, does the 14th Amendment make the children of illegal immigrants citizens? Certainly the four liberal Justices now on the court who nearly always vote as a partisan block for whatever Democrats want would not vote for anything that might curtail immigration. Conservative Justices are different from liberals in their aversion to rulings contrived to secure desired results rather than honest enforcement of Constitutional language. So, they too would likely hold that “anchor babies” are citizens, based on the plain language of the 14th Amendment.
A Constitutional Amendment is theoretically possible. But that would require two-thirds majority of both houses of Congress followed by three-quarters of state legislatures. Also, attempting to deny citizenship to certain babies would be a much more complex administrative challenge than the bombastic Mr. Trump has bothered to discuss. Birth records are generated by cities and counties on certificates that do not include immigration status. Do we really want to shift this function to the already bloated federal government? Would Mr. Trump hire federal officials to monitor maternity wards, verifying parental citizenship? What about illegal immigrants who are temporarily “legal” because they are exempt from deportation pending review, like the Rios-Pineda family mentioned above? Would their children be citizens?
In order to convert the legitimate anger and dismay of millions of us feel over uncontrolled immigration into votes for him, Mr. Trump invites negative reactions from Hispanic people toward all Republicans by focusing on something a President can’t change and, given the state of the law isn’t even worth fighting about. Indeed, if the border were secure, the relatively small number of births to illegal immigrants would fall nearly to zero leaving birthright citizenship a non-issue.
One of the reasons Republicans suffer election defeats is they get blamed for alleged harm done by their polices, when those policies were never implemented. For example, we’re told that Republican inspired “deregulation” caused the financial crisis of 2008 when no regulations were repealed and the real cause was federal regulatory interference in the mortgage lending business.
Let’s hope some of the other GOP candidates have the spine to challenge Mr. Trump’s reckless ideas before the GOP once again snatches defeat from the jaws of victory.