Politics & Policy

End Birthright Citizenship Now

President Obama in the Oval Office, March 10, 2015 (Getty)
Barack Obama makes the case.

President Obama has clinched the case for ending automatic citizenship for the U.S.-born children of illegal aliens, tourists, and foreign students.

To the extent that supporters of our current practice have made any coherent arguments at all in response to claims that such children are “anchor babies,” they have noted — correctly — that having a U.S.-born child does not give parents any formal right to stay or work in the United States, so that the “anchor baby” label is inaccurate. They have claimed that automatic citizenship for children was not a magnet for illegal immigration because the parents remained deportable and were, in fact, sometimes deported.

President Obama has changed all that.

Thanks to a strategy outlined in a memo by John Morton, the director of Immigration and Customs Enforcement, illegal aliens with U.S.-born children have been effectively exempt from deportation since 2011. Last November, the president took the next step, and decreed that nearly 5 million illegal aliens were to be granted work permits and Social Security numbers — a grant that is nominally temporary but that everyone involved understands is actually permanent. Whatever the outcome of the various lawsuits against the Obama administration, an expectation has thus been established: The anti-borders Left (with its collaborators on the Right) will stop at nothing, including lawless executive decrees, to ensure that a child born in the United States really is an “anchor baby.” This converts the immigration law into the immigration suggestion, giving the president effectively unlimited power to admit and legalize foreigners, regardless of Congress’s wishes.

It’s clear now that automatic citizenship at birth must be limited to those with at least one parent who is a U.S. citizen or legal permanent resident.

This is too bad, because the practice has much to recommend it. It simplifies the question of membership in the political community and thus avoids problems that arise from the presence of a large population of “native-born foreigners” — a challenge faced by, among others, Germany, the Dominican Republic, and the Persian Gulf states. It has been especially useful as an integration tool in a country with a long history of immigration.

(Full disclosure: I once described the push for tighter citizenship rules as “the restrictionism of fools,” citing the embrace of the cause by Senator Lindsey Graham [R., S.C.] and others as a way to trick voters and divert attention from their support for open-borders policies.)

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If we had a political class that was actually committed to America’s sovereignty, the number of illegal aliens residing, and giving birth, here wouldn’t be large enough to cause a problem. Ditto with the excessive number of foreign students and “temporary” workers currently allowed into the United States. And there are less sweeping ways of addressing the absurdity of birth tourism.

Unfortunately, we do not have such a political class. The post-American sensibility that dominates at the top levels of government, business, organized labor, academia, media, and organized religion means that automatic citizenship, once an important mechanism for the assimilation of immigrants and the strengthening of the American nation, has become a tool for its dissolution.

Some background: The custom in question derives from an interpretation of the 14th Amendment’s guarantee of citizenship to anyone born in the United States “and subject to the jurisdiction thereof.” That last phrase has never been litigated or defined by statute, and was originally intended to exclude Indians living within the borders of the United States but in their own separate societies. (Since there was virtually no illegal immigration or tourism at the time, those issues were never considered.) But it has been interpreted by the executive to mean everyone not exempt by diplomatic immunity from operation of U.S. law.

So what began as a way to ensure that the Reconstruction-era Southern states couldn’t strip newly freed slaves of citizenship has turned into a vehicle granting citizenship to the children of tourists, foreign students, and illegal immigrants. Even the sole exception acknowledged under our current arrangements — children born here to foreign diplomats — has been rendered a virtual nullity.

The numbers involved are significant. My colleague Steven Camarota estimated a decade ago that nearly one in ten births in the United States was to an illegal-immigrant mother, a total of 383,000 a year. The Pew Hispanic Center offered a similar estimate of 340,000 in 2008. The number of children born to tourists, foreign students, and temporary workers is harder to estimate, with guesses ranging from 40,000 up to 190,000 per year.

The number of children who would actually be ineligible for U.S. citizenship under a changed interpretation of the 14th Amendment would be somewhat smaller than these numbers suggest, given the recent decline in immigrant fertility, plus the fact that many children born to illegal-immigrant mothers have legal-immigrant or U.S.-citizen fathers. Even so, a conservative guess would be that the number of extra American citizens created by the current interpretation of the 14th Amendment is at least 1 million every four years.

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These large numbers mean that we need to be careful how we make the change. Passage of free-standing measures narrowing birthright citizenship, like the one just introduced by Senator David Vitter (R., La.), is politically important, in putting Congress on record. But in the end, given the large number of illegals already here and giving birth, the citizenship change would best be packaged with an amnesty for long-term settled illegals (as I have outlined here), so as to avoid the immediate growth of a U.S.-born illegal-alien population that would result if we were to change the birthright rule without first reducing the number of illegal aliens. After enforcement systems like E-Verify and visa-tracking are fully implemented and have survived court challenge, then new legislation could bundle an amnesty together with new citizenship rules (and cuts in future legal immigration).

There would be other details to work out. For instance, new federal standards for state birth certificates would be required, since the citizen or legal-resident status of the parents would have to be recorded for the Social Security Administration and the State Department to know whether to issue a Social Security number or a passport, the two practical markers of a child’s U.S. citizenship. There would probably also need to be a statute of limitations, as in Australia, so that if the child of an illegal alien or foreign student or worker lives the first ten years of his life here, he would acquire U.S. citizenship on his tenth birthday.

But we can work out such details. What matters is that automatic citizenship for anyone and everyone born on our soil is a policy that has outlived its usefulness. As our case is new, so we must think anew, and act anew, and end this archaic practice.

— Mark Krikorian is executive director of the Center for Immigration Studies (CIS).



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