All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.
==14th Amendment to the U.S. Constitution
Yes, it’s true, as Donald Trump said, that there is such a thing as “anchor babies” or, to use a more polite term, “birth tourism,” and it also is true, as Jeb Bush said, that most come from China and other Asian countries, not Mexico.
Here’s how it works. Chinese travel agencies arrange, for a fee, for Chinese couples to legally visit the United States and for the mother to give birth in a U.S. hospital. Under the 14th Amendment, those children are U.S. citizens. Under current U.S. law, those children, when they reach the age of 21, may apply for green cards for their parents to immigrate to the United States and eventually become U.S. citizens.
An unauthorized immigrant couple could do the same thing, but I don’t have any information on whether any or how many actually do. The possibility exists even if they didn’t originally intend to have the “anchor baby”.
These practices may not be a serious practical problem, at least not as yet, but they don’t sit well with me. They are a distortion of the intent of the Fourteenth Amendment and of U.S. immigration law.
The Fourteenth Amendment was enacted in 1868 so as to guarantee citizenship rights for newly-freed slaves and to reverse the 1857 Dred Scott decision, which held that African-Americans had no rights under the Constitution. The question of children of authorized immigrants did not arise, because the United States had no restrictions on immigration until the Chinese Exclusion Act of 1882.
However, the U.S. Supreme Court decided that Wong Kim Ark, who was born around 1871 to Chinese parents legally in the United States, was a U.S. citizen and could not be barred from re-entering the United States after a trip abroad.
One solution would be to repeal or amend the Fourteenth Amendment. This would be a difficult thing to do and also potentially dangerous unless the new amendment is worded very carefully. I wouldn’t want to give the federal government the power to deprive me and those I care about of our citizenship.
It might be possible to pass a law or file a lawsuit to clarify the meaning of “subject to the jurisdiction thereof.” The original Fourteenth Amendment did not apply to Indian tribes or to the children of foreign diplomats because they were not subject to U.S. law. You could make an argument that unauthorized immigrants are not subject to the jurisdiction of U.S. law, either.
This of course would not apply to Chinese and other “birth tourism” for legally authorized visitors to the United States.
Another possible approach would be to change U.S. immigration law as it applies to family reunification. My understanding is that it was intended to apply to relatives of U.S. citizens who were stranded in refugee camps, not everyday citizens of foreign countries who think they can do better in the USA. It would be a shame to stop this, but it is a practical way of eliminating “anchor babies” and “birth tourism”.
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Aside from the legal issues, I think it is interesting that the American way of life has such appeal for a certain number of affluent Chinese people. China overall is an economic success story, but the greater individual freedom of the USA still has an appeal. Or maybe they just want an escape route if things go bad in China.
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Afterthought 8/28/2015. Of course none of the changes in law I discuss would affect the status of existing American birthright citizens. To take away their citizenship would be an ex post facto (after the fact) law, which is forbidden by Article One Section 9 of the Constitution.
LINKS
Welcome to Maternity Hotel California by Benjamin Carlson for Rolling Stone.
‘Anchor Babies’ and the Law by Peter Van Buren for We Meant Well.
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Note: I am aware that “anchor baby” is a disrespectful term. I’m willing to use a better term if somebody can suggest a substitute that means the same thing. I originally quoted Scott Walker as advocating repeal of the Fourteenth Amendment. He stated Sunday that he does not.
MORE CHINA-RELATED LINKS
There are two market slumps. Only one matters by Malcolm Maiden for the Sidney Morning Herald (hat tip to naked capitalism). Maiden wrote that the one that doesn’t matter is the one in China.
I don’t know what to make of the Chinese stock market slump, but my impression is that in many ways contemporary China is like the United States during the Gilded Age—with much government corruption, financial instability and labor unrest, but, unlike in today’s USA, a fundamental optimism based on a rising material standard of living and a strong and growing industrial economy.
Chinese Transport Industry Poses Growing Threat to Germany by Bernhard Zand for Der Spiegel.
Germany is one of the few Western countries with a trade surplus with China. Der Spiegel had an interesting article about how this may change because Chinese leaders want to make China independent in transportation technology. Chinese leaders to not follow the supposed economic law of comparative advantage. Instead they try to increase China’s advantage across the board.
Tags: Anchor Babies, Birth Tourism, Birthright citizenship, China, Constitution, Fourteenth Amendment
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