Posts Tagged ‘Birthright citizenship’

Anchor babies, birth tourism and China

August 27, 2015

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.

anchorbabies-300x201Here’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”.


Subjects of the American empire

June 9, 2015

Hat tip to Jack C

We Americans don’t usually think of ourselves as rulers of an overseas empire, but the people of Guam, American Samoa, Puerto Rico, the Virgin Islands and other island territories might disagree.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia has ruled that people born on American island territories do not enjoy birthright citizenship rights under the Fourteenth Amendment to the Constitution.

However, Mother Jones reported there is a good chance this decision will be reversed on appeal.  I find it troublesome that lawyers for the Obama administration argued against birthright citizenship.   Just because the people of Samoa or Guam are not potential Democratic voters in federal elections doesn’t mean they don’t have rights.


A Federal Appeals Court Just Denied Birthright Citizenship to American Samoans Using Racist Case Law by Pema Levy for Mother Jones.

The question of birthright citizenship

March 22, 2011

The Fourteenth Amendment to the U.S. Constitution begins, “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. …”

This makes the United States one of 30 countries to give birthright citizenship to children of non-citizen immigrants.  In the U.S. case, citizenship has been given to children born in the United States to parents who are in the country illegally – which, however, has not prevented the deportation of the parents with their children.

The purpose of the Fourteenth Amendment was to grant rights of citizenship to the newly-freed slaves, and to forestall any laws by the Southern white people to deny them citizenship.  But when the amendment was being debated, its application to immigrants was discussed.

The sponsors intended birthright citizenship for children of any immigrants who had settled permanently in the United States, but not for the children of diplomats and other temporary foreign residents, who were not subject to the jurisdiction of the United States.

The question of illegal immigrants did not come up because in 1868, when the amendment was ratified, there was no such thing as an illegal immigrant in the United States.  When the United States was founded, immigration was fostered, not restricted.  One of the grievances against the British Crown in the Declaration of Independence is that “He has endeavoured to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither …”

The first law restricting immigration was enacted in 1875, when a law was passed forbidding immigration of convicts and of Chinese contract laborers and prostitutes.  There were no numerical restrictions on Latin American immigration until 1965.

I don’t think it a coincidence that all the nations granting birthright citizenship (indicated in black on the map above) are in the Western Hemisphere.  All these nations share a history of having vast lands and resources, a shortage of labor and a desire for immigration to alleviate that shortage.

The constitutional question of whether birthright citizenship applies to children of illegal immigrants would seem to depend on whether the courts rule they are subject to the “jurisdiction” of the United States.

It seems illogical that families who enter the United States in violation of its laws should have a right denied to those who obey our law, get in line and wait.  At the same time the denial of birthright citizenship sometimes imposes cruel hardships.  There are people born in the United States, who have known no other country besides the United States, in some cases honor students in high school or college, are subject to deportation to countries they have never known and to which they feel no allegiance.

I don’t have a good overall answer to this within the framework of current law and enforcement, except to give judges latitude to decide questions according to individual circumstances.  The law of birthright citizenship has to be a part of rethinking of our immigration system as a whole.

Click on Birthright Citizenship in the United States: A Global Comparison for background information and the source of the map.  The authors of the study state that the other 29 countries that offer birthright citizenship give it to children of illegal aliens, but I wonder whether this is true.

Click on Birthright citizenship in the United States wiki for background information from Wikipedia.

Click on List of United States immigration legislation wiki for Wikipedia’s chronological summary of U.S. immigration laws.

Click on Jus Soli wiki for Wikipedia’s account of birthright citizenship internationally.