Instant Citizens

by A. J. Delgado
Our misguided understanding of “birthright citizenship” is an invitation to abuse.

A new report by Rick Folbaum of CBS’s Miami affiliate shines light upon a pressing issue all too often ignored: women flocking to the U.S. in order to take advantage of the country’s notoriously generous birthright-citizenship policy. If a woman is here on vacation, or just passing through, and gives birth to a child on American soil: Boom! Automatic citizen! It may be that neither the child nor his parents have any ties whatsoever to the United States, yet the child is now an American citizen just as if his parents had worked, paid taxes, and been part of American society for years.

These children not only reap the incalculable advantages of U.S. citizenship but, when they turn 21, can sponsor their families’ U.S. residency — hence the term “anchor babies.”

We might better call this “unconditional citizenship.” All that is required is that the child be on American soil at the time of his birth — it generally matters not who the parents are, how they arrived here, why and how long they have been here, or whether they will even remain. Never paid a single dollar of tax in the United States or worked a day here? We will confer citizenship on your child nevertheless.

To be clear, there are two instances referred to as “birthright citizenship,” one of which is fair and one of which is ridiculous.The first is citizenship obtained at birth because at least one of the parents was a citizen at the time; this is referred to as jus sanguinis (Latin for “right of blood”), and it makes sense. The other is jus soli (Latin for “right of the soil”), citizenship granted simply by virtue of the child’s being born on that territory. For good reason, most nations, including every European nation, shun the soil-based “right” and instead grant citizenship only on the jus sanguinis principle. Out of the world’s advanced countries, only two grant automatic citizenship to those born on their soil: Canada and the United States.

So how did this happen? It’s thanks to the 14th Amendment, which reads: “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 language was originally intended to rightly confer citizenship on freed slaves and their children.) However, the champions of jus soli conveniently ignore consideration of the phrase “subject to the jurisdiction thereof,” as a myriad of legal scholars have questioned whether this language does, in fact, support our jus soli approach. While a tourist or undocumented immigrant is technically subject to our laws while visiting (e.g., if he commits a crime, he will be arrested), is that the same type of “subject to American jurisdiction” the 14th Amendment’s authors had in mind? Is a tourist truly subjecting himself to American jurisdiction the same way an American is, simply by vacationing here? It is hard to argue that the amendment’s authors intended the automatic jus soli, if only because they could not and did not imagine the ramifications of their confusing wording as (a) illegal immigration was not a large concern in mid-19th-century America, during a time when the nation was looking to grow and particularly seeking additional hands to cultivate lands out West; and (b) American citizenship was not so coveted back then as to warrant a trip here specifically for one’s child to obtain it. At the time of its drafting, in fact, as explained by the Heritage Foundation’s Hans A. von Spakovsky, “subject to [American] jurisdiction” meant not owing allegiance to any other country. Tourists certainly do still owe allegiance to their home country.

A variety of bipartisan efforts over the past 20 years have attempted to narrow our overly broad application of the “birthright” concept. But none has gained sufficient legs, nor has the Supreme Court addressed the topic of whether the child of a passing tourist is entitled to citizenship or even whether the child of undocumented immigrants is entitled to such.

The arguments in favor of keeping our current practice are usually along the lines of a nonchalant shrug, coupled with “Oh, come on — how common is it that a pregnant woman will actually travel to the U.S. simply to obtain American citizenship for her child?”

The answer: Quite common. Everyone has heard of the occasional woman slipping across the border from Mexico in order to give birth here. But this foolish American policy has led to a lucrative practice known as “birth tourism,” which brings women from all over the world for just this purpose. As the website Numbers USA reported back in 2011:

A cottage industry has built up around the U.S. system of birthright citizenship. Dozens of firms exploit birthright citizenship by offering “birth tourism” packages online. Well-heeled pregnant tourists pay $5,000 [to] $15,000 (depending on the package) in exchange for a room, medical assistance, and a newborn U.S. citizen (some packages also include sightseeing). Once the child is born, they get a U.S. birth certificate and passport for the child, and their future link to this country is established and irreversible. The process is completely legal. . . . 

The birth tourism industry provides unsettling answers to the questions “Is U.S. citizenship for sale?” and “What is U.S. citizenship worth?”

The Folbaum report mentioned earlier lifts the veil on the alarming number of Russian women who flock to south Florida precisely in order to give birth and then return home with the world jackpot of American citizenship. Folbaum notes:

Tiny red-covered feet kick at new life, born here in the USA, but headed back to mother Russia on a non-stop flight from Miami to Moscow. It’s all part of a booming baby business, created for women living in the former Soviet Bloc countries, who want to the benefits of giving birth to an American citizen. . . .

For weeks, CBS4 watched the check-in counter of the official Russian Airlines, Aeroflot, at Miami International, as dozens of women with tiny newborns prepared to board a flight with the newest member of their family, an infant and instant U.S. citizen.

Did you come here to give birth? asked our interpreter of a woman checking in to board Aeroflot with an infant. Yes, nodded the new mother. . . .

These businesses tend to charge between $20,000 and $100,000, acting as a sort of pregnancy concierge, recommending doctors and hospitals, short-term housing and transportation.

According to Folbaum’s report, just one of these “birth concierge” businesses estimates that 60 Russian women travel to south Florida specifically for this reason — per month! Add to that mothers from other nations (Numbers USA mentions South Korea and China, as well as Mexico), destinations in America other than south Florida, other concierge businesses, those who do not use a concierge service . . . and you have a number that is much, much higher than a few dozen per month.

Why is this practice allowed to continue?

― A. J. Delgado is a graduate of Harvard Law School and the author of Hip to Be Square: Why It’s Cool to Be a Conservative. You may find her on Twitter at @missADelgado.

 

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