US News & World Report
By Gabrielle Levy
August 22, 2015
Donald
Trump has climbed into the upper ranks of Republican candidates, and
he’s brought with him an immigration policy that was previously
relegated to the fringe.
Trump’s
recently released immigration plan includes a provision to end
birthright citizenship, the guarantee that any child born on U.S. soil
is automatically granted
American citizenship. The practice comes from Section 1 of the 14th
Amendment, which 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."
Better
known in recent decades for its guarantee of due process of law and its
Equal Protection Clause, Section 1 of the 14th Amendment has frequently
been used as the
tool to move important civil rights advancements forward and was at the
heart of the cases abolishing "separate but equal" access to public
services in the Jim Crow South and forced the integration of schools.
The amendment was cited in the justification to
legalize abortion in the 1970s and, just this summer, gay marriage. It
also handed Former Florida Gov. Jeb Bush's older brother, George W.
Bush, the presidency in 2000, when the Supreme Court ruled different
standards of counting ballots violated the Constitution.
But
upon its ratification in 1868, in the wake of the Civil War, the 14th
Amendment was the mechanism to grant former slaves U.S. citizenship and
protection under the
law.
Proposals
to revoke birthright citizenship have been around for decades,
including legislation introduced in Congress earlier this year by Rep.
Steve King, R-Iowa, and
Sen. David Vitter, R-La. Their aim, they say, is to eliminate
incentives for people to come to the U.S. in order to give birth here,
providing a way to circumvent the legal immigration queue by taking
advantage of politics that make it easier for parents of
U.S. citizens to gain permanent residency. Supporters of such
legislation say it served its historic purpose and should be repealed,
pointing to European countries like Great Britain, France, Germany and
Italy, in which citizenship by birthright is not absolute.
But their efforts to amend the Constitution with the same goal, for the
most part, have had little success.
Perhaps until now.
Following
the release of Trump’s plan, several of his fellow 2016 candidates,
including Sen. Ted Cruz of Texas, Louisiana Gov. Bobby Jindal and Sen.
Lindsey Graham of
South Carolina followed Trump by coming out in favor of the policy
Wisconsin Gov. Scott Walker on Friday rolled back statements that
suggested he also favored the policy, saying he had been misunderstood
and would not take a position "one way or the other".
Sen. Rand Paul of Kentucky has previously supported birthright citizenship legislation.
“I
think he’s done a lot of damage,” says Lynn Tramonte, deputy director
of America’s Voice, a pro-immigration reform group. “He’s not only now
leading in the polls, but
he has the ‘Trump effect,’ pulling other candidates to his position on
this issue.”
Democrats
pounced, and the party’s congressional campaign arm launched a Twitter
ad campaign in six swing states targeting Republicans, including Rep.
Mike Coffman of
Colorado.
“Republicans,
including Mike Coffman, want to end birthright citizenship,” one of the
Spanish-language ads said. “Tell @RepMikeCoffman that is wrong.”
The
ads also hit Reps. Marthy McSally of Arizona, Steve Knight of
California, Barbara Comstock of Virginia, Crecent Hardy of Nevada and
Will Hurd of Texas, all of whom
represent districts with large Hispanic populations.
Bush, whose past stances on immigration have been more moderate than his party’s, tried to split the difference.
Sen.
Orrin Hatch, R-Utah, talks with reporters after leaving the Senate
floor at the U.S. Capitol on May 18, 2015 in Washington, D.C.
Signs of Life For Immigration Reform
"This is a constitutionally protected right, and I don't support revoking it," Bush told reporters in South Carolina on Tuesday.
But
while he said he would “just reject out of hand” revoking birthright citizenship, Bush used a term that some consider offensive: “anchor
babies,” children born to
non-citizen parents who travel to the U.S. specifically to give birth
and obtain citizenship for their newborns.
"That's
the legitimate side of this,” he said on conservative talk radio host
Hugh Hewitt’s show. “Better enforcement so that you don't have these,
you know, 'anchor babies,'
as they're described, coming into the country."
Bush
stood by his comments even as Democrats and immigration activists
rained down criticism, saying he "didn't use it as my own language."
"Do you have a better term?" he fired back at reporters in New Hampshire. "You give me a better term and I'll use it."
Democratic front-runner Hillary Clinton piled on, suggesting several alternatives.
"How about 'babies,' 'children' or 'American citizens," she tweeted. "They're called babies."
For
his part, Trump has actually taken it a step further than most,
suggesting that not only should the 14th Amendment be changed to revoke
birthright citizenship, but
that it be made retroactive to those U.S. citizens born on American
soil to parents without legal immigration status.
“How
do you take away citizenship from some babies and not others? You’re
essentially inviting the government into the delivery room,” Tramonte
says. “He’s questioning
whether the Constitution as its been interpreted is even legal. It’s
like science fiction.”
Actually
changing the law, either through legislative means or a constitutional
amendment, is almost prohibitively difficult. The proposed legislation,
should it somehow
gain the votes to pass Congress and get a presidential signature, would
almost certainly face immediate challenge in courts, tying up the issue
for years.
And
the bar for a constitutional amendment is so high – approval by
two-thirds of both the House and Senate and ratification by
three-fourths of the states – that it's
only been done 27 times. The most recent, which deals with
congressional salaries, was ratified in 1992 – more than 200 years after
it was submitted to the states for ratification.
The
noise surrounding a relatively fringe proposal, while unlikely to
result in a change in policy, may have the side effect of muddying the
larger issue.
It
was already unlikely comprehensive immigration reform would get serious
consideration this congressional term, but Trump’s comments may give
the birthright citizenship legislation new life. When first introduced this term, only a few dozen
members supported the legislation, but given the movement of the
party’s would-be standard bearers, that may change.
Rand Paul's Plan to Buy an Election
"Some
of the bigger, flashier things that he's said have taken people's eyes
off the ball of what's actually achievable," says Theresa Brown,
director of immigration policy
at the Bipartisan Policy Center. "It's a distraction from the actual
issues."
Immigration
has risen as a priority for voters in the past five years, with 52
percent of Americans calling it a top priority in Pew Research Center's
annual survey, up
from 40 percent last year. While Trump's comments have pushed
birthright citizenship to the forefront, Brown says voters, including
Trump supporters, are looking for leaders who offer practical solutions.
"Voters
want somebody who reflects their position and their opinions, but they
also want people who actually solve problems," she says. "This just
never comes close."
The
one candidate so far resisting the pull, however, is Ohio Gov. John
Kasich, who supported revoking birthright citizenship while serving in
Congress but has since moderated
his stance.
Calling the issue a “stumbling block” for Republicans, Kasich said birthright citizenship is settled law.
“This
has been a long tradition in America,” he told reporters at a New
Hampshire campaign stop Wednesday. “Let’s keep it as it is, and let’s
move beyond it.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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