President Trump — The Political Elitist Establishment (PEEs) of The Democratic and Republican Parties and Mainstream Media Worst Nightmare — American People Want Immigration Law Enforcement and Ending Birthright Citizenship aka Anchor Babies — American People Including Trump Democrats, Trump Republicans and Trump Independents Will Elect Trump — PEES are Panicing — Videos
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Story 1: President Trump — The Political Elitist Establishment (PEEs) of The Democratic and Republican Parties and Mainstream Media Worst Nightmare — American People Want Immigration Law Enforcement and Ending Birthright Citizenship aka Anchor Babies — American People Including Trump Democrats, Trump Republicans and Trump Independents Will Elect Trump — PEES are Panicing — Videos
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used — and frequently litigated — phrase in the amendment is “equal protection of the laws“, which figures prominently in a wide variety of landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender discrimination), and University of California v. Bakke (racial quotas in education). See more…
Article I describes the design of the legislative branch of US Government — the Congress. Important ideas include the separation of powers between branches of government (checks and balances), the election of Senators and Representatives, the process by which laws are made, and the powers that Congress has. See more…
…To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
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Could Birthright Citizenship Be Undone?
Touting constitutional amendments on the campaign trail is more likely to rally voters than to produce changes in the law.
MATT FORD AUG 19, 2015
The Fourteenth Amendment, for its part, is clear on the scope of birthright citizenship: “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.” Redefining the Citizenship Clause, either by legislation or by constitutional amendment, seems all but impossible today. “The only thing a politician could promise that would be harder would be, say, promising to build a giant, hundreds-of-miles-long wall and getting another country to pay for it,” The Washington Post’s Philip Bump drily notes. But like the proposed Great Wall of Mexico, feasibility may not be the point. It’s all about getting votes.
Donald Trump’s Immigration Principles Would’ve Barred His Own Grandfather
The last constitutional amendment used to resolve a political controversy was the Twenty-First Amendment in 1933, which reversed prohibition. Constitutional amendments since then have reformed either presidential election and succession procedures (the Twenty-second, Twenty-third, and Twenty-fifth) or elections themselves (the Twenty-fourth and Twenty- sixth). The Twenty-seventh and most-recently ratified amendment, which addresses congressional pay, lay dormant for over 200 years before a college student revived interest in it.
Indeed, since the defeat of the Equal Rights Amendment in 1982, no major social or political movement has seriously attempted to amend the Constitution to accomplish its goals. The anti-abortion movement, for example, generally focuses on limiting abortion’s scope through legislation and on supporting presidential candidates who will appoint Supreme Court justices to overturn Roe v. Wade. Opponents of capital punishment universally argue that the death penalty already violates the Eighth Amendment; advocating a separate constitutional amendment would undermine that argument. The gay-rights movement made the case that the Fourteenth Amendment’s Equal Protection Clause protects their rights, a position adopted by the U.S. Supreme Court in Obergefell v. Hodges in June.
But recent history shows the electoral value of proposing constitutional amendments. In 2003, the gay-rights movement scored two major legal victories: the Supreme Court struck down sodomy laws nationwide in Lawrence v. Texas and Massachusetts’s highest court legalized same-sex marriage under that state’s constitution. For conservatives at the time, the Supreme Court’s trajectory seemed obvious—and so did the solution. As the 2004 election loomed, the conservative National Review forecasted that the spectacle of same-sex marriage would hurt Democratic candidate John Kerry. At the time, the American electorate was still broadly hostile to marriage equality.
To hammer home this connection, the National Review pointed to the Federal Marriage Amendment. First proposed in 2002, the FMA would constitutionally define marriage as existing only between a man and a woman. A path to ratification would be arduous, the magazine argued, but the struggle would bring its own benefits. “Constitutional amendments must be approved by a two-thirds vote of Congress and three quarters of the state legislatures,” it eagerly noted. “That means every political candidate, from the state level up, will be asked to take a stand.” In essence, the 2004 election would become “a national referendum on gay marriage.”
If John Kerry is elected, gay marriage will surely be nationalized by the end of his term. A Bush defeat would take the wind out of the sails of the campaign for the Federal Marriage Amendment, assure liberal judges that no serious consequences will arise from nationalization, and bring more Goodridge-style liberals onto the courts. A Bush victory, on the other hand, would keep the FMA alive, would help signal the courts that they’ve gone too far, and would stop the proliferation of activist judges on our courts.
Evangelicals took credit when Bush trounced Kerry that fall, although some dispute their impact. But their perceived role went unrewarded when Congress didn’t pass the FMA after Bush’s reelection; Democrats then retook both houses in 2006, forestalling future attempts. As public acceptance of same-sex couples grew in the Obama years, most GOP candidates abandoned the amendment. (Texas senator and GOP presidential candidate Ted Cruz said last year that he still supports it, however.)
Republicans aren’t alone in using constitutional amendments to stir up their base, although they do it particularly effectively. After Al Gore was defeated in the 2000 presidential election despite winning the popular vote, some congressional Democrats proposed a constitutional amendment to abolish the Electoral College. Those efforts lost steam after Barack Obama trounced John McCain and Mitt Romney with significant margins of electoral votes. A similar movement emerged after the Supreme Court’s ruling in Citizens United v. FECthat struck down limits on corporate and union election spending. Vermont senator and Democratic presidential candidate Bernie Sanders proposed one of several amendments in 2011; Hillary Clinton said she would only appoint justices who pledged to overturn the ruling.
Could birthright citizenship still be undone? There’s a strain of legal thought that argues that a constitutional amendment wouldn’t be necessary. In 1985, Yale law professors Peter Schuck and Rogers Smith proposed that congressional legislation could clarify that the right does not extend to the children of undocumented immigrants. It’s not a completely heretical idea—Richard Posner, a prominent federal judge in the Seventh Circuit, endorsed it in 2010—but it’s not a mainstream one, either. When Congress considered similar legislation in 1995, Assistant Attorney General Walter Dellinger told members that a bill “that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face.” Although a constitutional amendment to achieve the same goal could not itself be unconstitutional, Dellinger also argued it “would flatly contradict the Nation’s constitutional history and constitutional traditions.”
Anchor baby is a pejorative term for a child born in the United States to a foreign national mother who was not lawfully admitted for permanent residence.There is a popular misconception that the child’s U.S. citizenship status (acquired by jus soli) legally helps the child’s parents and siblings to quickly reclassify their visa status (or lack thereof) and to place them on a fast pathway to acquire lawful permanent residence and eventually United States citizenship. This is a myth. Current U.S. federal law prevents anyone under the age of 21 from being able to petition for their non-citizen parent to be lawfully admitted into the United States for permanent residence. So at best, the child’s family would need to wait for 21 years before being able to use their child’s US citizenship to modify their immigration status.
The term is generally used as a derogatory reference to the supposed role of the child, who automatically qualifies as an American citizen and can later act as a sponsor for other family members. The term is also often used in the context of the debate over illegal immigration to the United States to refer to children of illegal immigrants, but may be used for the child of any immigrant. A similar term, “passport baby”, has been used in Canada for children born through so-called “maternity” or “birth tourism“.
History and usage
A related term, “anchor child”, referring in this case to “very young immigrants who will later sponsor immigration for family members who are still abroad”, was used in reference to Vietnameseboat people from about 1987. “Anchor baby” appeared in print in 1996, but remained relatively obscure until 2006, when it found new prominence amid the increased focus on the immigration debate in the United States. Lexicographer Grant Barrett nominated the term for theAmerican Dialect Society‘s 2006 Word of the Year.
It is generally considered pejorative. In 2011 the American Heritage Dictionary added an entry for the term in the dictionary’s new edition, which did not indicate that the term was disparaging. Following a critical blog piece by Mary Giovagnoli, the director of the Immigration Policy Center, a pro-immigration research group in Washington, the dictionary updated its online definition to indicate that the term is “offensive”, similar to its entries on ethnic slurs. As of 2012, the definition reads:
n. Offensive Used as a disparaging term for a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially when the child’s birthplace is thought to have been chosen in order to improve the mother’s or other relatives’ chances of securing eventual citizenship.
The decision to revise the definition led to some criticism from illegal immigration opponents.Mark Krikorian, executive director of the Center for Immigration Studies, an organization that advocates tighter restrictions on immigration, argues that defining the term as offensive is inaccurate and is done for purposes of political rhetoric; according to Krikorian, “‘[An anchor baby] is a child born to an illegal immigrant,'” and the revision of the definition to state that the term is offensive was done to make a political statement. According to Fox News:
Bob Dane, spokesman for the Federation for American Immigration Reform, a Washington-based organization that seeks to end illegal immigration, said the revised definition panders to a small but vocal group of critics who are “manipulating the political, cultural and now linguistic landscape” of the United States. “Publishing word definitions to fit politically correct molds surrenders the language to drive an agenda,” Dane told FoxNews.com. “This dictionary becomes a textbook for the open borders lobby.”
According to the Double-Tongued Dictionary, written by American lexicographerGrant Barrett, the term “anchor baby” means “a child born of an immigrant in the United States, said to be a device by which a family can find legal foothold in the US, since those children are automatically allowed to choose United States citizenship.” In response to a reader comment, Barrett claimed that the term is used to refer to a child of any immigrant, not just children of illegal immigrants.
In 2012, UtahAttorney GeneralMark Shurtleff, in a meeting designed to promote the 2010 Utah Compact declaration as a model for a federal government approach to immigration, said that “The use of the word ‘anchor baby’ when we’re talking about a child of God is offensive.”
Maternity tourism industry
As of 2015, Los Angeles is considered the center of the maternity tourism industry; authorities in the city there closed 14 maternity tourism “hotels” in 2013. The industry is difficult to close down since it is perfectly legal for a pregnant woman to travel to the U.S.
On March 3, 2015 Federal Agents in Los Angeles conducted a series of raids on 3 “multimillion-dollar birth-tourism businesses” expected to produce the “biggest federal criminal case ever against the booming ‘anchor baby’ industry”, according to the Wall Street Journal.
The Citizenship Clause of the Fourteenth Amendment to the United States Constitution indicates that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court of the United States affirmed in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that the Fourteenth Amendment guarantees citizenship for nearly all individuals born in the country, regardless of their parents’ citizenship or immigration status. However, some, like Edward Erler argue that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: “Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally.”
Statistics show that a significant, and rising, number of illegal aliens are having children in the United States, but there is mixed evidence that acquiring citizenship for the parents is their goal. According to PolitFact of the St. Petersburg Times, the immigration benefits of having a child born in the United States are limited. Citizen children cannot sponsor parents for entry into the country until they are 21 years of age, and if the parent had ever been in the country illegally, they would have to show they had left and not returned for at least ten years; however, pregnant and nursing mothers could receive free food vouchers through the federalWIC (Women, Infants and Children) program and enroll the children in Medicaid.
Parents of citizen children who have been in the country for ten years or more can also apply for relief from deportation, though only 4,000 persons a year can receive relief status; as such, according to PolitFact, having a child in order to gain citizenship for the parents is “an extremely long-term, and uncertain, process.”Approximately 88,000 legal-resident parents of US citizen children were deported in the 2000s, most for minor criminal convictions.
Some critics of illegal immigration claim the United States’ “birthright citizenship” is an incentive for illegal immigration, and that immigrants come to the country to give birth specifically so that their child will be an American citizen. The majority of children of illegal immigrants in the United States are citizens, and the number has risen. According to a Pew Hispanic Center report, an estimated 73% of children of illegal immigrants were citizens in 2008, up from 63% in 2003. A total of 3.8 million unauthorized immigrants had at least one child who is an American citizen. In investigating a claim by U.S. SenatorLindsey Graham, PolitiFact found mixed evidence to support the idea that citizenship was the motivating factor. PolitiFact concludes that “[t]he data suggests that the motivator for illegal immigrants is the search for work and a better economic standing over the long term, not quickie citizenship for U.S.-born babies.”
There has been a growing trend, especially amongst Chinese visitors to the United States, to make use of “Birth Hotels” to secure US citizenship for their child and leave open the possibility of future immigration by the parents to the United States. The U.S. government estimates that there were 7,462 births to foreign residents in 2008 while the Center for Immigration Studies estimates that 40,000 births are born to “birth tourists” annually. Pregnant women typically spend around $20,000 to stay in the facilities during their final months of pregnancy and an additional month to recuperate and await their new baby’s U.S. passport. In some cases, the birth of a Canadian or American child to mainland Chinese parents is a means to circumvent the one-child policy in China;Hong Kongand the Northern Mariana Islands were also popular destinations before more restrictive local regulation impeded traffic. Some prospective mothers misrepresent their intentions of coming to the United States, a violation of U.S. immigration law; however, it is not illegal for a woman to come to the U.S. to give birth.
On August 17, 2006, Chicago Tribune columnist Eric Zorn used the term “anchor baby” in reference to Saul Arellano, in a column critical of his mother, who had been given sanctuary at a Chicago church after evading a deportation order. After receiving two complaints, the next day Eric Zorn stated in his defense in his Chicago Tribune blog that the term had appeared in newspaper stories since 1997, “usually softened by quotations as in my column”, and stated that he regretted having used the term in his column and promised not to use it again in the future.
On August 23, 2007, the San Diego, California-area North County Times came under criticism from one of its former columnists, Raoul Lowery Contreras, in a column titled “‘Anchor babies’ is hate speech”, for allowing the term “anchor baby” to be printed in letters and opinion pieces.
On April 15, 2014, during a televised immigration debate between San Antonio, Texas Mayor Julian Castro and Texas Senator Dan Patrick, Dan Patrick came under criticism when he used the term “anchor babies” while describing his own view of some of the immigration issues the state of Texas faced.
On November 14, 2014, CNN Anchor Chris Cuomo used the term on New Day: “Breaking overnight, President Obama has a plan to overhaul the immigration system on his own — an executive order on anchor babies entitling millions to stay in the U.S. Republicans say this would be war. Is the word “shutdown” actually being used already?” Chris Cuomo later apologized for the comment, ” OK, now, do they? Because let’s think through what this issue actually is on the other side of it. This issue is called the “anchor babies.” I used that term this morning. I shouldn’t have. It’s ugly and it’s offensive to what it is. What it really goes to is the root of the most destructive part of our current immigration policy, you’re splitting up families. They come here, here illegally, they have a baby, and the family gets split up. Maybe the kid stays. We don’t have a workable formation. This goes to the heart of the Latino vote because it shows a real lack of sympathy. You have to come up with some kind of fix. So why avoid this one? Don’t you have to take it on?”
- Birthright citizenship in the United States
- Birth tourism
- Family reunification
- Illegal immigration in the United States
- United States nationality law
- Anchor babies in Hong Kong
Birthright citizenship in the United States
Birthright citizenship in the United States refers to a person’s acquisition of United States citizenship by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization later in life. Birthright citizenship may be conferred by jus soli or jus sanguinis. UnderUnited States law, U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the U.S. This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands) and the U.S. Virgin Islands, and also applies to children born elsewhere in the world to U.S. citizens (with certain exceptions).
The Citizenship Clause of the Fourteenth Amendment to the United States Constitution 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.”
Current U.S. law
“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.”
Statute, by birth within U.S.
As of 2011, United States Federal law (8 U.S.C. § 1401) defines who is a United States citizen from birth. The following are among those listed there as persons who shall be nationals and citizens of the United States at birth:
- “a person born in the United States, and subject to the jurisdiction thereof” or
- “a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe” (see Indian Citizenship Act of 1924).
- “a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States”
- “a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person”
There are special provisions governing children born in some current and former U.S. territories or possessions, including Puerto Rico, the Panama Canal Zone, theVirgin Islands, Guam, and the Northern Mariana Islands. There are also special considerations for those born in Alaska and Hawaii before those territories acquired statehood. For example, 8 U.S.C. § 1402 states that “[a]ll persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth”.
According to 8 U.S.C. § 1408 persons born (or found, and of unknown parentage, under the age of 5) in an outlying possession of the U.S. (which is defined by 8 U.S.C. § 1101 as American Samoa and Swains Island) are U.S. nationals but not citizens, unless otherwise provided in section 1401. The U.S. State Department publication titled Acquisition of U.S. Nationality in U.S. Territories and Possessions explains the complexities of this topic.
Statute, by parentage
Under certain circumstances, children may acquire U.S. citizenship from their parents. From 1940 until 1978, a child born abroad who acquired U.S. citizenship at birth but had only one U.S. citizen parent had to fulfill a “retention requirement” of residing, or being physically present, in the United States or its outlying possessions for a certain number of years before reaching a specified age. Otherwise the child would not retain the U.S. citizenship (hence the name “retention requirement”). The retention requirement was changed several times, eliminated in 1978, and subsequently eliminated with retroactive effect in 1994.
Children born overseas to married parents
- If both parents are U.S. citizens, the child is a citizen if either of the parents has ever had a residence in the U.S. prior to the child’s birth
- If one parent is a U.S. citizen and the other parent is a U.S. national, the child is a citizen if the U.S. citizen parent has lived in the U.S. for a continuous period of at least one year prior to the child’s birth
- If one parent is a U.S. citizen and the other parent is not, the child is a citizen if
Children born overseas out of wedlock
There is an asymmetry in the way citizenship status of children born overseas to unmarried parents, only one of whom is a U.S. citizen, is handled.
Title 8 U.S.C. § 1409 paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.
8 U.S.C. § 1409 paragraph (a) provides that children born to American fathers unmarried to the children’s non-American mothers are considered U.S. citizens only if the father meets the “physical presence” conditions described above, and the father takes several actions:
- Unless deceased, has agreed to provide financial support to the child until he reaches 18,
- Establish paternity by clear and convincing evidence and, while the person is under the age of 18 years
- the person is legitimated under the law of the person’s residence or domicile,
- the father acknowledges paternity of the person in writing under oath, or
- the paternity of the person is established by adjudication of a competent court.
Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s.The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a citizen.
This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child. In 2001, the Supreme Court, by 5–4 majority in Nguyen v. INS, first established the constitutionality of this gender distinction.
Eligibility for office of President
According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace). As a result, controversies have arisen over the eligibility of a number of candidates for the office.
Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship, although slaves and the children of slave mothers, under the principle of partus sequitur ventrem, were excluded. The United States did not grant citizenship after the American Civil War to all former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee. Those living in tribes on reservations were generally not considered citizens until passage of the Indian Citizenship Act of 1924, although by that time nearly two-thirds of American Indians were already citizens.
English common law
Birthright citizenship, as with much United States law, has its roots in English common law. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that, under English common law, “a person’s status was vested at birth, and based upon place of birth—a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.” This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne: “All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England…since as before the Revolution.” United States v. Rhodes, 27 Fed. Cas. 785 (1866). However, Calvin’s Case is distinguishable, as a Scotsman was granted title to English land as his King and England’s King (James) were one and the same. Calvin was not born in England. Moreover, inCalvin’s Case, Lord Coke cited examples in which the native-born children of parents, either invading the country or who were enemies of the country, were not natural-born subjects because the birth lacked allegiance and obedience to the sovereign.
The Naturalization Act of 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.
Dred Scott v. Sanford
Justice Roger B. Taney in the majority opinion in Dred Scott v. Sanford 60 U.S. (How. 19) 393 (1857) held that African Americans, whether slave or free, had never been and could never become citizens of the United States, as they were excluded by the Constitution. The political scientist Stuart Streichler writes that Taney’s decision was based on “a skewed reading of history.”. Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation, free blacks had already been considered citizens in five states and carried that citizenship forward when the Constitution was ratified.
The first section of the second article of the Constitution uses the language “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States … The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States…
1862 opinion of the Attorney General of the United States
In 1862, Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not “colored men” can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion concluding, “I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, …[italics in original]” In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
… our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[italics in original]
Civil Rights Act of 1866
The Civil Rights Act of 1866 declared: “…all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (“Indians not taxed” referred to tribal members living on reservations.)
Fourteenth Amendment to the United States Constitution
“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.”
Expatriation Act of 1868
This act, a companion piece to the Fourteenth Amendment, was approved on 27 July 1868.
Dr. Edward J. Erler of California State University, San Bernardino, and Dr. Brook Thomas of the University of California at Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act.
1873 opinion of the Attorney General
In 1873, The Attorney General of the United States published the following legal opinion concerning the Fourteenth Amendment:
“The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.”
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924 provided “That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States”. This same provision (slightly reworded) is contained in present-day law as section 301(b) of the Immigration and Nationality Act of 1965 (8 USC 1401(b)).
U.S. Supreme Court case law
Sailor’s Snug Harbor
In the case of Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip’s Bay in 1776, but not to children born in New York during the British occupation that followed.
“Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth..”
The Slaughter-House Cases
In the Slaughter-House Cases, 83 U.S. 36 (1873) — a civil rights case not dealing specifically with birthright citizenship — a majority of the Supreme Courtmentioned in passing that “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”.
Elk v. Wilkins
In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court denied the birthright citizenship claim of an American Indian. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court’s majority held that the children of Native Americans were
“no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”
Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924, which rendered the Elk decision obsolete.
United States v. Wong Kim Ark
- is born in the United States
- of parents who, at the time of his birth, are subjects of a foreign power
- whose parents have a permanent domicile and residence in the United States
- whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject
becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution.
Canadians transferred to U.S. hospitals
Since the majority of Canadians live in the relatively thin strip of land close to the long border with the United States, Canadians in need of urgent medical care are occasionally transferred to nearby American medical centers. In some circumstances, Canadian mothers facing high-risk births have given birth in Americanhospitals. Such children are American citizens by birthright.
In both of these situations, the birthright citizenship is passed on to their children, born decades later. In some cases, births in American hospital (sometimes called “border babies“) have resulted in persons who lived for much of their lives in Canada, but not knowing that they had never had official Canadian citizenship. This group of people is sometimes called Lost Canadians.
Another problem arises where a Canadian child, born to Canadian parents in a US border hospital, is treated as a dual citizen and added to the United States tax base on this basis despite having never lived, worked nor studied in that nation. While Canadian income tax is only payable by those who reside or earn income in Canada, the US Internal Revenue Service taxes its citizens worldwide. Campobello Island is particularly problematic as, while legally part of New Brunswick, the only year-round fixed link off the island leads not to Canada but to Lubec, Maine — leading to many Canadians whose families have lived on Campobello for generations not being able to claim to be born in Canada.
During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well asPresident Andrew Johnson, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard’s proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase “Indians not taxed” would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
Edward Erler argues that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: “Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally.” Angelo Ancheta, by contrast, criticizes the “consent-based theory of citizenship”, saying that “The Fourteenth Amendment was designed to ensure citizenship for ‘all persons’ born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves.”
In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents’ chances of attaining legal residency themselves. Some media correspondents and public leaders, including former congressman Virgil Goode, have controversially dubbed this the “anchor baby” situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.
The Pew Hispanic Center determined that according to an analysis of Census Bureau data about 8 percent of children born in the United States in 2008 — about 340,000 — were offspring of illegal immigrants. In total, about four million American-born children of illegal immigrant parents resided in this country in 2009, along with about 1.1 million foreign-born children of illegal immigrant parents. The Center for Immigration Studies—a think tank which favors stricter controls on immigration—claims that between 300,000 and 400,000 children are born each year to illegal immigrants in the U.S.
Bills have been introduced from time to time in Congress which have sought to declare American-born children of foreign nationals not to be “subject to the jurisdiction of the United States”, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent was an American citizen or a lawfulpermanent resident.
Both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizenship Clause. In 1993, Sen. Harry Reid (D-Nev.) introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since. For example, U.S. Representative Nathan Deal, a Republican from the State of Georgia, introduced the “Citizenship Reform Act of 2005” (H.R. 698) in the 109th Congress, the “Birthright Citizenship Act of 2007” (H.R. 1940) in the 110th Congress, and the “Birthright Citizenship Act of 2009” (H.R. 1868) in the 111th Congress. However, neither these nor any similar bill has ever been passed by Congress.
Some legislators, unsure whether such Acts of Congress would survive court challenges, have proposed that the Citizenship Clause be changed through aconstitutional amendment. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
The most recent judge to weigh in on the issue as to whether a constitutional amendment would be necessary to change the policy is Judge Richard Posner who remarked in a 2003 case that “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.” He explained, “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” Posner also wrote, that automatic birthright citizenship is a policy that “Congress should rethink” and that the United States “should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.”
Professor Edward J. Erler of the California State University has argued that “Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.” Some others have disagreed with this interpretation, contending that while Congress can define territories (such as an Indian Reservation) as US jurisdiction, it has no power to define people as under US jurisdiction aside from where they were born.
Republicans in the State of Arizona have indicated an intention to introduce state legislation which would seek to deny American citizenship to Arizona-born children of illegal immigrant parents by prohibiting the issuance of a birth certificate unless at least one parent has legal status. However, critics argue that the child or parents could immediately sue the state for discrimination and that the federal courts would immediately force the state to issue the birth certificate.
A report by an organization called the National Foundation for American Policy (NFAP) in 2012 asserted that revoking birthright citizenship would be bureaucratic, expensive, would result in a national ID card, and would not slow illegal immigration. Under current law, if a citizen parent gives birth in a foreign country, they must prove their own citizenship in order for their baby to have citizenship. The NFAP estimated this to cost $600 per baby, not including legal fees. The report alleged that if birthright citizenship were eliminated, every baby in the United States would be subject to this cost. For the four million babies born each year in the U.S., this would total $24 billion per year. In addition, currently the US government does not keep any record of births, instead using the records of individual states to issue passports. The report alleged that the end of birthright citizenship would leave the states unable to verify whether a new baby should be granted citizenship, requiring the federal government instead to issue birth certificates, and likely a national ID card. Finally, the report claimed that eliminating birthright citizenship would not reduce illegal immigration. The report said that immigrants come to the United States for economic reasons, and illegal immigrants cannot use a citizen child to be granted citizenship. The report also said that all proposals to end birthright citizenship, aside from a constitutional amendment, would be unconstitutional and quickly be overturned in court. The Center for Immigration Studies disputed these conclusions, asserting in its own 2012 report that the NFAP’s claims were “unsupported”, that a bureaucratic overhaul would not be necessary, and that ending automatic birthright citizenship would not cost parents money, result in a caste system, or create stateless children.
- Birthright citizenship in other jurisdictions
- Birth tourism
- Citizenship in the United States
- Natural-born citizen
- United States nationality law
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