Wednesday, August 11, 2010

Denying Birthright Citizenship? Do not forget the founders of this country were immigrants

August 11, 2010

WALL STREET JOURNAL (Chavez Op-Ed): The Case For Birthright Citizenship

By Linda Chavez
August 11, 2010

Republican leaders in Congress are now flirting with changing portions of the 14th Amendment-which grants citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof"-to deny citizenship to children born here to illegal immigrants.

The idea of modifying birthright citizenship has been around for decades but was previously relegated to the fringes of the immigration restriction movement. Yet in recent days, Sens. John McCain, Lindsey Graham and Jon Kyl have embraced the idea; Senate and House GOP leaders Mitch McConnell and John Boehner have proposed hearings.

Repealing birthright citizenship is a terrible idea. It will unquestionably jeopardize the electoral future of the GOP by alienating Hispanics-the largest minority and fastest-growing segment of the U.S. population. More importantly, ending birthright citizenship would fundamentally change what it means to be an American.

Proponents of repeal argue that the 14th Amendment was passed after the Civil War to guarantee citizenship to freed slaves, and that it was never intended to grant rights to the offspring of illegal aliens. But this argument is a non sequitur. At the time of the adoption of the amendment, there was no category of "illegal alien" because immigration was unrestricted and unregulated. If you secured passage to the United States, or simply walked across the open border with Mexico or Canada, you could stay permanently as a resident alien or apply to be naturalized after a certain number of years. And if you happened to give birth while still an alien, your child was automatically a citizen-a right dating back to English common law.
The most serious challenge to birthright citizenship for the children of aliens came in 1898, and it involved a class of aliens who were every bit as unpopular as present-day illegal immigrants: the Chinese. Like most illegal immigrants today, the Chinese came here to work as common laborers, eagerly recruited by employers but often deeply resented by the workers with whom they competed. This popular resentment, coupled with racial prejudice, led to America's first immigration restriction law, the Chinese Exclusion Act of 1882. It was followed by successively more restrictive federal and state laws that denied Chinese aliens-and, later, other Asians-the right to own property, to marry, to return to the U.S. if they left, or to become American citizens.

With anti-Chinese alien sentiment still high, the Supreme Court took up the case U.S. v. Wong Kim Ark in 1898. Born in San Francisco to alien parents who later returned to China, Wong travelled to his parents' homeland for a visit and was denied re-entry on his return in 1895. The government argued that Wong had no right to birthright citizenship under the 14th Amendment because his parents remained "subjects of the emperor of China" not subject to U.S. jurisdiction, even while residing in California at the time of his birth. In a 7-2 vote, the Supreme Court ruled otherwise.

The court found that the only persons Congress intended to exclude from birthright citizenship under the 14th Amendment were children born to diplomats-an ancient, universally recognized exception even under common law; Indians, who by treaty were considered members of sovereign nations; and children of an occupying enemy. "The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States," wrote Justice Horace Gray for the majority. To hold otherwise, he noted, would be to deny citizenship to the descendants of English, Irish, Germans and other aliens who had always been considered citizens even if their parents were citizens of other countries. For more than a 100 years, the court has consistently upheld this analysis.

Our history has been largely one of continuously expanding the community of people regarded as Americans, from native-born whites to freed slaves to Indians to naturalized citizens of all races and ethnicities. Since the abolition of slavery, we have never denied citizenship to any group of children born in the U.S.-even when we denied citizenship to their parents, as we did Asian immigrants from 1882 to 1943. This expansive view of who is an American has been critical to our successful assimilation of millions of newcomers.

Conservatives should not betray these values based on a misreading of American history and legal precedent. Instead of amending the Constitution to eliminate "anchor babies"-the ugly term opponents of birthright citizenship use to describe these U.S. citizens-Republicans should be helping them become good Americans.

FORT WORTH STAR TELEGRAM (Editorial): Deporting students isn't the best answer to immigration problems

August 10, 2010

If dealing with the thousands of youths in the U.S. illegally were a midterm exam, there's hardly an answer the Obama administration could give that would be seen universally as the right one.

If Immigration and Customs and Enforcement follows a strategy of "deport them all," the agency runs into situations such as former University of Texas at Arlington student Saad Nabeel's. He came to the United States as a preschooler and graduated from high school in Frisco, but he and his family were deported to Bangladesh. Nabeel and his friends are using Facebook and YouTube to blast the administration and try to facilitate his return here.

If ICE picks "let them stay" and instead spends its finite resources on removing criminals, there's a buzz saw of criticism for not shipping out every person who is in the country illegally. And the complaints churn despite figures showing that more noncitizens are being deported than ever before.

Policing illegal immigration is a complicated, multifaceted operation, and priorities have to be set on how best to use funds and manpower.

Despite public misperception that immigration laws aren't being enforced, removal of illegal aliens has increased each year since 2005, according to the Transactional Records Access Clearinghouse, a nonpartisan project at Syracuse University.

In fiscal 2005, ICE removed 195,000 people, and that grew to 389,834 in fiscal 2009, the clearinghouse reported on Aug. 2. The number was more than 279,000 for the first nine months of fiscal 2010 (through June).

The clearinghouse found that, from 2005 through 2009, the increases resulted largely from catching people who entered the country illegally or overstayed visas.

But, during the last part of 2009, ICE appeared to switch its enforcement strategy to target "individuals who had committed crimes while in this country," the clearinghouse reported. That's resulted in a record number of criminal alien deportations. ICE and the border patrol are also referring more cases for criminal prosecution.

Those efforts haven't appeased administration critics upset about a New York Times report that officials aren't deporting students living in the U.S. illegally after being brought in as children.

Those students personify a conundrum that persists because immigration reform efforts have failed.

By and large for these students, the U.S. is the only home they know. They've spent their lives pursuing the American dream: staying in school, staying out of trouble, preparing for the benefits and responsibilities of citizenship -- but it's a citizenship they don't have and can't acquire. There are about 700,000 of them.

In April, Democratic Sen. Richard Durbin of Illinois and Republican Sen. Richard Lugar of Indiana, sponsors of the DREAM Act, asked the Homeland Security Department to defer student deportations while they try to move their bill forward. It would create a mechanism for students who came to the U.S. before age 16 and have spent five years here to move toward legal status.

Officials didn't declare a moratorium but appear to have put one into practice.

Some Republicans have called it selective enforcement and legislating from the White House.

No president should get to cherry-pick laws in defiance of Congress. But that's not what this looks like. Immigration agencies indeed are enforcing the law against illegal aliens who pose a danger to communities. Congress is trying to find a rational solution to the problem of students whose only offense is that they were brought here illegally.

Focusing limited border enforcement resources where they can be most effective is good practice and smart policy -- and the best answer available until Congress does the hard work of improving the immigration system.

NEWSWEEK: Revoking Birthright Citizenship: What Would Bush Do?

August 10, 2010

As Matt Bai recalled in his New York Times column this weekend, President George W. Bush wanted a part of his political legacy to be expanding Republicans' appeal to nonwhites, in particular among Latinos. This hardly seemed a preposterous notion when he took office: Bush had performed respectably among Latino voters in Texas, and many Latinos are devout Catholics who lean conservative on social issues.

So much for that! A fierce opposition to illegal immigration swept the Republican base, nearly killing John McCain's presidential campaign in the primaries, and it is bubbling up again. As The Washington Post reports, Tea Party groups are planning an anti-immigration rally at what they say is a popular illegal crossing on the Texas-Mexico border.

In a rush to appease the angry mobs, a gaggle of leading congressional Republicans has raised the idea of revoking the Constitution's apparent granting of citizenship upon birth in the United States. (The 14th Amendment declares "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.")


Some former members of the Bush-Cheney administration think that the 14th Amendment, adopted in the wake of the Civil War, ought not to be changed to suit the GOP's midterm strategy. "The 14th Amendment is a great legacy of the Republican Party," Former Bush and McCain strategist Mark McKinnon said to Politico. "It is a shame and an embarrassment that the GOP now wants to amend it for starkly political reasons." That comes, as Politico's Scott Wong notes, on the heels of criticism of the proposal from Dick Cheney's former domestic policy adviser Cesar Conda and former Bush speechwriter Michael Gerson.

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While Gerson, Conda, and McKinnon criticized the movement to revoke birthright citizenship as bad policy, it might also be bad politics in the long run. Bai cautions that while the GOP could increase their margins among angry whites by fanning fears of a diversifying country, they would be further alienating a growing constituency.

But the Republicans are focused on the midterms, to the possible exclusion of long-term party building. That has been clear since the health-care-reform debate, when Republicans abandoned their longstanding opposition to government spending in general and Medicare in particular to complain that health-care reform would take money out of Medicare. That played well with seniors. The connection to the current ruckus over birthright citizenship? Older Americans are disproportionately white and the GOP is doubling down on its strategy of running up the margins among older whites to offset their deficits among younger and nonwhite voters.

As Jonathan Chait of The New Republic writes, this is good politics in an off-year election, when low turnout among newer voters guarantees an electorate that will skew older and whiter than the population as a whole. But a funny thing happens over time: children grow up, and start to vote, and the electorate diversifies. Will Republicans be able to erase the image of intolerance that this proposal may imprint among the young, nonwhite voters of the future?

POLITICO (Dellinger Column): What makes an American?

By Walter Dellinger

August 11, 2010

From the beginning of our republic, the simple fact of being born on American soil has made one a citizen of the United States.

Once, tragically, we departed from that simple but profound principle. In 1856, in Dred Scott v. Sandford, the Supreme Court held that no person of African descent, including free people of color, and none of their descendants, slave or free, could ever be a U.S. citizen, notwithstanding their birth in America.

It was in response to Dred Scott that one of our great political parties emerged. The 1860 Republican presidential candidate, Abraham Lincoln, denounced the court's creation of a class of people born on U.S. soil, yet without rights and condemned to pass their noncitizen status to future generations. After a brutal civil war, in which hundreds of thousands lost their lives, a nation was reconstituted by amendments to the Constitution. The principle of birthright citizenship was enshrined as the 14th Amendment's first sentence.

Proposals to alter that principle have understandable popular appeal. The notion that a child born in the United States is automatically a citizen - even if the baby's parents are here illegally - is a concept that is, quite literally, foreign to many Americans.

Some in Congress, including Sen. Lindsey Graham (R-S.C.), have expressed support for changing the Constitution. House Minority Leader John Boehner (R-Ohio) said Sunday that this idea was "worth considering."

Many wonder why those in this country illegally should be rewarded by having citizenship bestowed on their offspring. Though the number of children involved is not large - about 4 million, or slightly more than 1 percent of the U.S. population - neither is it trivial.

This rule cannot be changed by statute because the 14th Amendment flatly declares, with one exception, that all people born in the United States are citizens. (That exception, for those not "subject to the jurisdiction" of the United States, was intended to exclude a limited group, principally children of foreign diplomats.)

As the Supreme Court held in United States v. Wong Kim Ark in 1898, "the 14th amendment ... has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."

Congress undoubtedly has the power, by a two-thirds vote, to propose an amendment to the Constitution that, if ratified by three-fourths of the states, would revise the 14th Amendment's birthright citizenship provision.

Sens. John McCain (R-Ariz.), Jon Kyl (R-Ariz.) and John Cornyn (R-Texas) all recently announced support for committee hearings on this - making it likely that one or both houses of Congress will soon hold hearings that might generate support for an amendment.

For reasons deeply rooted in our history, adopting such an amendment would be a grave mistake. Reflecting on our country's experience with Dred Scott, we concluded, in the Civil War's aftermath, that we should never again entrust politicians or judges with the power to deny citizenship to a class of people born on U.S. soil.

Other countries may follow a different approach - taking bloodlines into account in determining whether citizenship is warranted. But for our nation, with its brutal legacy of deciding who among those born here did and did not truly merit citizenship, a simple, objective birthplace test of citizenship had - and has - a powerful appeal.

In 1995, when this issue last emerged, I testified for the Clinton administration before a congressional committee considering similar proposals. I argued that since the Civil War, "everyone born in America is born equal, with no curse of infirmity, and with no exalted status, arising from the circumstance of his or her parentage."

I said that this would no longer be the case if we amended the Constitution "in a way that would create a permanent caste of aliens, generation after generation after generation, born in America but never to be among its citizens."

That position of the executive branch is one that I hope the Obama administration will continue to endorse.

Using the readily ascertainable, bright-line fact of birth on U.S. soil as a basis for awarding citizenship is fundamental to who we are as a people.

The essence of the American identity is change. Throughout our history, people from different parts of the world have come to this land. Every decade, every year, every day, we evolve.

And key to that quintessentially American evolution is the fact that each generation is born with a clean slate. We never look back to question whether your, or my, parents, grandparents or great-grandparents were "true Americans."

With the birth of each new child on U.S. soil, any questions about the legitimacy of prior generations are forever confined to those generations. Each new boy or girl born here is - simply and indisputably - an American.


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