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Top GOP Senators Endorse Ending Birthright Citizenship

August 3, 2010 - by Donny Shaw

In the debate over immigration reform, Republicans have generally stuck to a few basic principles over the years. Improve enforcement of the borders, deport all undocumented immigrants, and refocus the immigration system to prioritize people with needed skills. But recently, Republicans in Congress have been moving more and more solidly behind a more radical idea — denying legal citizenship status to the children who are born in the U.S. of undocumented immigrants.

Sen. Lindsey Graham [R, SC], one of the only Republicans who has engaged with Democrats in comprehensive immigration reform talks, recently came out in support of repealing birthright citizenship protections. “People come here to have babies," Graham said last week in an interview with Fox News. “They come here to drop a child." Graham’s endorsement of repealing birthright citizenship was quickly followed up by the two highest ranking Republicans in the Senate. Minority Whip Sen. Jon Kyl [R, AZ] endorsed the idea on Sunday and Minority Leader Sen. Mitch McConnell [R, KY] called for hearing on the issue the next day. UPDATE: Arizona’s other senator, John McCain®, told TPM today that he is also supportive of holding hearing on ending birthright citizenship. “You’re changing the constitution of the United States,” McCain said. “I support the concept of holding hearings.”

In the House, 94 Republicans, more than half of the House Republican Caucus, have signed on as co-sponsors to the Birthright Citizenship Act of 2009, which states that only children who have at least one parent who is a U.S. citizen, a legal permanent resident, or an undocumented immigrant serving in the military can be granted citizenship.

It’s pretty clear that repealing birthright citizenship is quickly moving from a fringe cause supported by only the most anti-immigration aspects of the Republican party to a basic plank of the party’s platform with support from some of its most centrist members. But no matter how much support for the repeal grows among Republicans, they are always going to face one huge problem with getting the repeal to take effect — the Constitution of the United States.

The 14th Amendment 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.” You can be sure that if the Birthright Citizenship Act is ever passed into law, it will be challenged as unconstitutional. The question would then be, are undocumented immigrants “subject to the jurisdiction” of the U.S.? There is big split here among interpreters of the law. Opponents of birthright citizenship argue that children of undocumented immigrants are, by their nature, not subject to the jurisdiction of the U.S. They cite Supreme Court precedent from the Slaughterhouse Cases that “the phrase ‘subject to the jurisdiction thereof’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.” However, supporters of birthright citizenship point to the fact that children of undocumented immigrants are under the jurisdiction of U.S. law while in the U.S. “If they commit a crime, they’re subject to the jurisdiction of the courts,” argues Michele Walsin of the American Immigration Council.

Furthermore, the Supreme Court has already ruled, in the 1897 United States v. Wong Kim Ark case, that the 14th amendment gants citizenship to most people born on U.S. soil, even to foreigners. Here’s how the opinion is described on Wikipedia:

In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth.

If the law were passed and then ruled unconstitutional, the next option for the Republicans would be to try to pass a constitutional amendment repealing the citizenship clause of the 14th amendment. But that’s just unrealistic. It takes a 23rds vote in both the Senate and the House and then ratification of 3/4ths of the individual states to have a constitutional amendment take effect.

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