Needed: Supreme Court Decision on Automatic Birthright Citizenship

By Joe Guzzardi
October 13, 2015
 
The first Democratic debate will take place Tuesday in Las Vegas where the leading candidates, namely Hillary Clinton and Bernie Sanders, and a few long shots will duel over familiar of national concerns: the Iran agreement, Syrian refugees, Keystone Pipeline, and the omnipresent bugaboo, jobs.
 
But a topic that won’t be touched with a ten-foot pole is one that played a prominent role in the Republican debate and is still a lightning rod for the GOP, birthright citizenship. Should children born on American soil be automatically granted citizenship by virtue of their presence in the United States at the moment when their foreign national mother gave birth?
 
The Democrats won’t be posturing on birthright citizenship because, even though it’s of mounting importance to Americans, the party and its candidates agree that the 14th Amendment mandates that children born in the U.S. are automatically citizens, jus soli, defined as the right of the land as an unconditional basis for citizenship.
 
Little wonder that Americans are concerned about birthright citizenship. According to a recent Pew Hispanic Center Study, eight percent of U.S. births come from parents where at least one person is an unlawful immigrant or an unmarried alien mother. Pew also found that in 2014 the total births to unlawful immigrants was 4.5 million, up from 2.7 million in 2003. More than 300,000 children are born annually to foreign women admitted as visitors, that is, tourists, students, guest workers, and other non-immigrant categories.
 
The expansive interpretation of the Constitution’s 14th Amendment has spawned the devious birth tourism industry wherein wealthy foreign citizens pay large sums to deliver a baby in the U.S. so that they can later, if they chose, return the child to the U.S. to attend school or eventually petition his parents and other relatives to join him in America.
 
These births to aliens or so called tourists set into motion a series of entitlements that not only create a drain on American taxpayers but more important establish an “anchor” for the illegal aliens’ family. President Obama proved the point conclusively last year when he introduced his Deferred Action for Parents of Americans and Lawful Permanent Residents. DAPA, which would have temporarily protected anchor baby parents from deportation, is on hold pending a final ruling.
 
Legal scholars disagree on how to interpret the 14th Amendment, specifically this clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."
 
The 14th Amendment was ratified in 1868 as part of a post-Civil War reforms movement to protect recently freed African-American slaves and to insure that their rights, including citizenship, would not be abused. In 1868, the U. S. had no formal immigration policy, and therefore the authors could not have considered immigration when they ratified the amendment.
 
Until the Supreme Court defines the 14th Amendment, a legislative solution is an option and a path that many other nations have taken. The Birthright Citizenship Act, H.R. 140, would amend the Immigration and Nationality Act, not the Constitution, to define persons born in the U.S. as "subject to the jurisdiction" of the U. S. for automatic citizenship purposes if one of his parents is (1) a U.S. citizen or national; (2) a lawful permanent resident alien whose residence is in the U.S. or (3) an alien performing active service in the U.S. Armed Forces.
 
Without clarification from the Supreme Court or new congressional legislation, the uncertainty surrounding the status quo will remain, a stalemate unacceptable to all parties.