Yesterday I spoke with Sen. Lindsey Graham (R., S.C.) who caused a bit of a stir by tentatively endorsing a plan to modify the century-old standard of birthright citizenship — by constitutional amendment if necessary. I asked the senator about what such an amendment would look like and whether it stands a chance of ratification, and about whether he favors the amendment in part as a way to sell his comprehensive immigration plans to conservatives in South Carolina and across the country.
Below is an edited transcript of our conversation.
Daniel Foster: When you spoke up about birthright citizenship along with Senator Kyl (R., Ariz.) and some others, quite a few of the news reports took what you said out of context. Nobody is trying to repeal the Fourteenth Amendment, right?
Lindsey Graham: No, no. Nobody’s repealing the Fourteenth Amendment. What we’re doing is amending the amendment in a way to allow the Congress to regulate birthright citizenship. These two court cases have interpreted the “jurisdiction of the United States” clause to allow illegal immigrants to come here and their children to be awarded citizenship. I would like to see if we could change that dynamic by statute, but with the Supreme Court rulings I doubt if we can. The change would be simple. It would be an amendment to the amendment that would say: Congress has the authority to regulate birth-right citizenship.
Foster: So you’re not confident that this could be done by statutory action as Congressman Lamar Smith (R., Texas) favors?
GRAHAM: That’s why I want to have a hearing. [There are] brighter minds than mine on this topic — I’ve read the Supreme Court cases and they firmly hold that the Fourteenth Amendment does not confer upon Congress the ability to regulate birth-right citizenship. I think that is something we should have the ability to do, because if we don’t control the incentive to come here and have a child for the purpose of citizenship — crossing the border illegally — we’re going to undercut any reforms we enact, and you’ll have the third wave.
What drives my thinking on this is, I want all of our laws on the table for review that have led to this problem. The problem being 12 million illegal immigrants after you gave amnesty to three million. And this to me, if not looked at seriously, will continue to be an incentive to break the law in the future no matter what we do in changing our law. If you can still in the future be granting citizenship to a child born in America by illegal crossing, you will continue to incentivize illegal crossing.
FOSTER: Isn’t a bit of this, frankly, strategic? Aren’t you looking for ways to bring conservatives on board with the more comprehensive immigration reform that you favor? Is that fair to say?
GRAHAM: Yeah, I think it’s fair to say that I need to go home to South Carolina and say: listen, I know we’re all upset that we have 12-14 million people illegally. I’m going to have to be practical. We’re not going to deport or jail 12-14 million people. A practical solution is not awarding this citizenship on day one, but to allow them to stay here on our terms, learn our language, pay a fine, hold a job, and apply for citizenship through the legal process by getting in the back of the legal line.
That to me is a practical solution. But, I have to be able to say, as part of doing that, we looked at all the incentives that led to the 12-13 million coming, and we changed them. That we did secure our border, unlike any other time in the past, that we now have laws that make it possible to verify employment; we now have a temporary worker program that will allow people to come here and work on our terms temporarily, and help our employers with labor when they can’t find American labor. I have to be able to say that, because I think most Americans are willing to clean this mess up. They’re not willing to perpetuate it.
FOSTER: What do you think are the prospects right now, in the judiciary committee, for getting a hearing on this?
GRAHAM: I think, in this environment, we’re probably — the Democratic party, the immigration groups, would be smart to embrace the idea that we’re going to have a future system with a path to citizenship. We’ll be a welcoming nation. But were not going to continue to have incentives for people to break the law. That would be reassuring to the public at large, if both parties embraced the idea that we are going to clean this mess up. To those who want to continue the practice of allowing people to come here illegally for the purpose of having a child, it makes me suspicious as to whether or not you want a third wave. I don’t want a third wave. I want to be fair and firm to the people we have here today illegally. I just don’t want to have a third wave. And if you say that the policy of incentivizing people to come here to have a child by illegal crossing is not a problem, then I don’t see how you get there.
FOSTER: If you do have to go the amendment route, that’s a pretty uphill battle.
GRAHAM: It would be, but I think America is ready to embrace solutions, and we’re ready to do the hard thing. I don’t think it’d be hard to get three-fourths of the states to ratify the amendment. And the amendment would be a simple concept. It would say: Congress shall have the authority to regulate birth-right citizenship. It would be prospectively applied and we would then write statutes. You would not put a statute in the fourteenth amendment. The debate about how to do that would go through the normal legislative process. I think something like that would have a very good chance of being ratified in 34 states because it makes so much sense.
If it’s prospectively applied, it’s seen as preventing a future wave of illegal immigrants, and it’s not unfairly punishing people by stripping them of their citizenship. I think it would pass. Now would it pass in Congress? The politics of immigration are such today, that I’m not so sure you could go home and justify this continued practice in light of the problems we’ve had with 12 million illegal immigrants. Because it’s hard is no reason not to do it.
FOSTER: Where is the Senate right now on immigration reform? How do you feel about prospects for your plan?
GRAHAM: I think that’s a good question. I think the Arizona debate has actually helped. When the people of Arizona threw up their hands and said ‘enough already, if you cant get your act together in Congress then we’re going to start dealing with this ourselves because we’re being overwhelmed; we’re being overrun; this is putting our state’s economy, our social fabric at risk; illegal immigrants are being exploited, people are coming across the border and committing crimes. it is a terrible situation; now we’re going to start protecting ourselves.’ It has woke America up. I think it’s created the idea that doing nothing is unacceptable. I think the next Congress will have some wind at its back in terms of solving the problem because we all know what happens when it’s unaddressed. It’s becoming unmanageable — the Arizona problem is spreading throughout the whole country, and the idea of the federal government taking a pass on illegal immigration is probably unsustainable.