It’s time to ‘reimagine’ birthright citizenship

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July 11, 2018

By Brian Lonergan

One of the biggest challenges in the immigration debate today is that the American people are routinely given faulty “facts” or outright lies by the media and opportunistic politicians.  The media-manufactured crisis over separating children from their illegal alien parents at the southern border is just the most recent example.  The misrepresented photos, absurd comparisons of detention centers to concentration camps, and nonstop cable news demagoguery have served to confuse the public and advance the narrative of the open borders movement.

Now comes a whopper: much of what the American public has been told about birthright citizenship is wrong.  The Immigration Reform Law Institute (IRLI) recently filed a friend-of-the-court brief in Fitisemanu v. United States, a case of birthright citizenship currently before the U.S. District Court for the District of Utah.  In its brief, IRLI attorneys did not take a position on the primary issue in Fitisemanu: whether American Samoa is part of the United States for purposes of citizenship.  The brief instead examined the overarching matter of birthright citizenship.  Namely, does the Fourteenth Amendment to the Constitution grant automatic citizenship to children born in the U.S. to parents who are not U.S. residents, or who are in the country without permission?  The findings may well topple conventional wisdom about one of the crown jewels of the left’s immigration agenda.

For decades, many agencies have treated virtually all children born in the United States – even the children of illegal aliens or tourists – as citizens at birth under the Constitution.  This all-inclusive interpretation of birthright citizenship, repeated endlessly in the mainstream media, is what gave rise to the “anchor baby” phenomenon.  With children born in the United States to illegal alien parents instantly qualifying for welfare and other state and local benefit programs, the incentive for aliens to have their children born in the U.S. is immense.

Yet under Supreme Court precedent, neither the children of illegal aliens nor those of tourists are citizens at birth.  In the 1898 case of United States v. Wong Kim Ark, the Supreme Court found that a man born in San Francisco to Chinese parents was a citizen at birth under the Fourteenth Amendment because his parents, when he was born, were legally residing in the United States.  The holding of this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons whatsoever born in the United States, with the narrow exceptions of children of diplomats, members of an invading force, and Indians born in the allegiance of a tribe.  The brief shows that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship.  The Court’s decision has been incorrectly applied for 120 years.

Based on Wong Kim Ark and an earlier decision in Wilkins v. Elk, the still controlling rule of the Supreme Court is clear: whether one is a citizen at birth under the Fourteenth Amendment depends on whether one was born in the United States to a U.S. resident parent who, at the time, both had permission to be in the United States and owed direct and immediate allegiance to the United States.  This rule happens to exclude the children of both illegal aliens (who do not have permission to be in the country) and tourists (who do not “reside” here) from constitutional birthright citizenship.

Interpreted correctly, the precedents of these cases would work a sea change in immigration law as it is currently applied.  In addition to shrinking the magnet for illegal passage across the southern border, recognition of the correct rule would prevent crass exploitation of our laws by the “birth tourism” industry, in which foreign nationals essentially plan an American vacation with the explicit purpose of bearing a child here.  The payoff is a U.S. passport for the child, who would then have the right to sponsor the parents for citizenship when he reaches 21 years of age.  Is this an objective of U.S. immigration policy or a mockery of it?

In her virtue-signaling attacks on Trump administration immigration policy, Sen. Kirsten Gillibrand (D-N.Y.) declared an urgent need to “reimagine” the purpose of U.S. Immigration and Customs Enforcement.  While that proposal is childlike, unserious, and a political nonstarter, she’s correct that some reimagining of immigration law is overdue.  A good place to start would be the loopholes and misinterpretations that have allowed birthright citizenship to be manipulated in ways that run counter to America’s best interests.

Brian Lonergan is director of communications at the Immigration Reform Law Institute.

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