For nearly 140 years, any child born on U.S. soil, even to an illegal immigrant, has been given American citizenship. Now, some conservatives in Congress are determined to change that.
A group of 92 lawmakers in the House will attempt next week to force a vote on legislation that would revoke the principle of “birthright citizenship,” part of a broader effort to discourage illegal immigration.
The push to change the citizenship policy is backed by some conservative activists and academics. But it could cause problems for the White House and the Republican Party, which have been courting Latino voters. GOP officials fear the effort to eliminate birthright citizenship will alienate a key constituency, even if the legislation ultimately is rejected by Congress or the courts.
The principle at issue rests on the first sentence of the 14th Amendment, ratified in 1868 to guarantee the rights of emancipated slaves: “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.”
Some lawmakers advocating tougher immigration laws contend that the amendment has been misinterpreted for decades. Conservatives maintain that although illegal immigrants are subject to criminal prosecution and are expected to abide by U.S. laws and regulations, they are not “subject to the jurisdiction” of the United States in the full sense intended by the amendment’s authors -- and their children therefore fall outside the scope of its protection.
Those who want to change the interpretation acknowledge that illegal immigration is largely driven by the hunger for jobs at U.S. wages. But they also say that for some immigrants, automatic citizenship provides another compelling incentive to cross the border. They note that the United States is one of few major industrialized nations that grant birthright citizenship with no qualifications.
“Illegal immigrants are coming for many different reasons,” said Rep. Lamar Smith (R-Texas), one of the lawmakers pushing for the House measure. “Some are coming for jobs. Some are coming to give birth. Some are coming to commit crimes. Addressing this problem is needed if we’re going to try to combat illegal immigration on all fronts.”
But the proposal may rankle Latino voters.
“This is about attempting to deal with a serious policy problem by going after people’s babies.... It doesn’t have to become law for this kind of proposal to offend people,” said Cecilia Munoz, vice president for policy of the National Council of La Raza, a Latino advocacy group. “This one really hits a nerve.”
The 92-member House Immigration Reform Caucus, headed by Rep. Tom Tancredo (R-Colo.), wants to attach an amendment revoking birthright citizenship to a broader immigration bill scheduled to be taken up sometime next week. Although several revocation bills have been introduced in the House, the most likely one to move forward would amend the Immigration and Nationality Act to deny automatic citizenship to children born in the United States to parents who are not citizens or permanent resident aliens.
There is no official tally of the number of children born to illegal immigrants; unofficial estimates range from 100,000 to 350,000 a year. Smith and other critics of current immigration law say that 1 in 10 U.S. births -- and 1 in 5 births in California -- are to women who have entered the country illegally.
Upon reaching the age of 18, a U.S.-born child of illegal immigrants can petition to obtain permanent legal residency for his or her parents and siblings. Although it generally takes years for such requests to be approved or rejected, parents who receive visas then can begin the process of applying for full citizenship.
Because of the length of time involved, some immigration experts say that birthright citizenship is not a major incentive for the vast majority of illegal entrants.
“No, absolutely not,” said Tamar Jacoby, a senior fellow at the Manhattan Institute, a conservative think tank. “It’s something that a few middle-class professional people do. I have never met a poor person who has his wife walk across the desert at eight months pregnant so they can wait 21 years to be sponsored by their child.”
Harry Pachon, executive director of USC’s Tomas Rivera Policy Institute, said there were undoubtedly some immigrants for whom birthright citizenship was a significant incentive. “But is it in the hundreds of thousands? I don’t think so, and there’s no evidence to support that,” Pachon said.
Still, opinion polls suggest that many Americans consider it a major problem. A November survey by independent pollster Scott Rasmussen found that 49% of those surveyed favored ending birthright citizenship, while 41% were opposed to any change.
Such sentiments appear to reflect growing ambivalence on the part of many Americans about the economic and social impact of immigration, which appears likely to become a major issue in many 2006 congressional races.
President Bush and many GOP lawmakers are pressing for a broad rewrite of U.S. immigration laws, including steps to crack down on illegal border crossings and to create a temporary guest worker program open to many of the 8 million to 11 million illegal immigrants in the country.
But some House conservatives, including those in Tancredo’s caucus, want to vote before year’s end on a bill that mainly contains tough enforcement measures. They are fighting to include revocation of birthright citizenship among its provisions.
Some opponents of birthright citizenship have assumed that revoking the right would require a constitutional amendment. But others argue that it could be revoked by passing legislation to delineate who is entitled to citizenship and who is not, while leaving the Constitution alone.
John C. Eastman, director of the Center for Constitutional Jurisprudence at Chapman University in Orange, told the House immigration panel in September that the phrase “subject to the jurisdiction thereof” suggests that the 14th Amendment does not apply to children of undocumented immigrants because their parents are living in the United States illegally.
In an interview, Eastman said that members of Congress who introduced the 14th Amendment made it clear in floor debate that they did not intend for it to apply to children of noncitizens temporarily residing in the United States. There were no illegal immigrants then, Eastman said, because there were no laws on the books addressing the issue.
“You didn’t have a massive immigration of people who were retaining allegiance to another nation and maybe coming here temporarily and then going back,” Eastman said. “In 1868, you didn’t make that trip across the Atlantic twice.”
Advocates for immigrants contend that the revocation debate is designed to pander to public anxiety about immigration, despite what they say is a lack of evidence that it would have a significant effect on illegal entries.
Some of them also say that if birthright citizenship for illegal immigrants were revoked, it could create a large population of “stateless” children whose futures had been compromised because of the actions of their parents. Their citizenship would be determined by their parents’ countries of origin; some children might be required to petition another government to establish their legal status.
Supporters of birthright citizenship expressed hope that they could head off the revocation measure in the House, or failing that, on the other side of Capitol Hill.
“There is no support for the concept in the Senate,” said Sen. Judd Gregg (R-N.H.). “There are certain things that we have done as a nation for a long time that I don’t think we’re going to change. Rolling back the clock is not going to solve the problem of immigration.”
Times staff writers Mary Curtius and Nicole Gaouette contributed to this report.