CBS News
By Rebecca Kaplan
August 18, 2015
A
policy paper released by 2016 Republican frontrunner Donald Trump this
weekend has reopened a question in the immigration debate that some of
Trump's fellow GOP candidates
may want to avoid: Is it time to end birthright citizenship?
According
to Trump, it is - and his plan promises to do so. "This remains the
biggest magnet for illegal immigration," Trump says in the policy paper.
He cites a 2011
survey by the right-leaning Rasmussen polling organization, which found
that 65 percent of likely U.S. voters do not support birthright citizenship, which is automatic citizenship for anyone born on U.S.
soil. A 2010 CBS News poll found that 47 percent of
Americans are in favor changing the law so that the children of
immigrants in the U.S. illegally cannot become citizens, whereas 49
percent say it should stay the same.
Trump
also noted that Senate Minority Leader Harry Reid once backed the idea
of ending birthright citizenship, a position Reid abandoned and one that
is almost universally
rejected by Democrats today.
Although
Republicans are eager to toughen up U.S. immigration enforcement and
border patrol, many candidates have stopped short of calling for an end
to birthright citizenship.
That could change as they are asked to respond to Trump's proposal.
Wisconsin Gov. Scott Walker got the question Monday, to which he said
"absolutely, going forward" the U.S. should end birthright citizenship.
He was less specific when asked about it again,
saying, "What we should do is enforce the law."
New
Jersey Gov. Chris Christie told conservative radio host Laura Ingraham
last week that immigration policies including birthright citizenship need to be "reexamined
in light of the current circumstances." Sen. Lindsey Graham, R-South
Carolina, who says immigration reform must include a pathway to citizenship, called birthright citizenship a "mistake" in 2010 and said
he would amend the 14th Amendment to discourage future
illegal migration. Sen. Rand Paul, R-Kentucky, cosponsored a bill with
Sen. David Vitter, R-Louisiana, in 2011 that would only extend citizenship to babies born in the U.S. if one or more of their parents
was a citizen, immigrant with legal status, or member
of the armed forces.
It's
common for at least one lawmaker to introduce legislation each year
that would deny automatic citizenship to a baby born to immigrants who
are in the U.S. illegally.
But aside from stirring up public debate, those bills rarely go
anywhere.
Is it possible to end birthright citizenship?
Birthright citizenship comes from the 14th Amendment to the Constitution, which
was ratified in 1868. It states: "All persons born or naturalized in the
United States,
and subject to the jurisdiction thereof, are citizens of the United
States." It gave citizenship to former slaves and overruled the Supreme
Court, which said in Dred Scott v. Sandford that slaves were not U.S.
citizens.
Multiple
immigration law professors interviewed by CBS News said ending
birthright citizenship would involve passing an amendment to change the
Constitution.
"It
would require a vote of two thirds of both houses of Congress and then
ratification by three fourths of the state legislatures so politically, I
think that's almost
impossible," Stephen Yale-Loehr, a Cornell University Law School
professor, told CBS News. "Some people believe that they could simply
pass a statue to end birthright citizenship without having to amend the
Constitution, but I think that most legal scholars
believe that a constitutional amendment is required."
Hiroshi
Motomura, who teaches immigration law and citizenship at the University
of California-Los Angeles, told CBS News that ending birthright citizenship is "an overly
simple solution for a really complex problem...with consequences that
are going to be seriously negative consequences for this country. It
would be much better to fix the immigration system."
The
small group of scholars who say the 14th Amendment is open to further
clarification by Congress focus on the words, "subject to the
jurisdiction thereof." They point
to the fact that Congress did not consider Native Americans to be
subject to the jurisdiction of the United States, and offered citizenship on a tribe-by-tribe basis until it was it was made available
to all tribes in 1923.
Yale
Law Professor Peter Schuck explained it this way in a 2010 New York
Times op-ed: "The argument against any birthright citizenship is that
these children are here
as a result of an illegal act and thus have no claim to membership in a
country built on the ideal of mutual consent."
The
most applicable Supreme Court case on birthright citizenship came in
1898 when the court ruled that Wong Kim Ark became a U.S. citizen at
birth even though his parents
- who lived in the U.S. when he was born - were of Chinese descent. His
parents resided in the U.S. legally.
What would happen if the U.S. were to change the 14th Amendment?
If
Congress were to end birthright citizenship but not make an effort to
remove immigrants in the U.S. illegally, their numbers would actually
increase.
A
2010 study by the Migration Policy Institute found that the
undocumented population would rise from its current level of about 11
million to 16 million by 2050 as families
continued to expand, but with children not becoming American citizens.
That number would be even higher if the government only allowed children
who had two legal-status parents to become citizens.
Michael
Fix, the president of the Migration Policy Instiute and one of the
study's co-authors, said it would also result in "an underachieving,
unintegrated subpopulation"
as more generations of children are born but unable to advance in
society because of their legal status.
"We
know that children who were raised in families with one or more
undocumented parents have worse developmental and education outcomes
than children raised in families
with similar but legal parents," Fix told CBS News.
Children
whose parents were born outside of the U.S. would, in most cases,
inherit citizenship from their parents' countries. But many would
probably choose to stay in
the U.S., especially if it was the only country they had ever known.
"Somebody
will be able to survive in the United States, but it will be rather
difficult for them to be able to advance in the United States,"
Demetrios Papademetriou,
the president of Migration Policy Institute Europe, told CBS News. "You
will have a significant number of people who would be second-class and
third-class citizens."
Motomura,
the UCLA professor, also argued that removing the possibility of citizenship for children born to undocumented parents will make it much
less likely that they
will assimilate because there will be less of an attachment to the
country where they live.
"One
of the biggest things that this country does to assimilate immigrants
is that we offer them citizenship," he said. "The real consequences of
this will be seen in
5 to 30 years when people grow up without a sense of belonging."
For more information, go to: www.beverlyhillsimmigrationlaw.com
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