Both Sides Get Ready for Legal Brawl over Denying Citizenship to Babies of Undocumented

As lawmakers in several states push for an end to automatic citizenship to U.S.-born babies of illegal immigrants, a Hispanic organization that has won landmark civil rights cases says it will sue any state that passes such a law.

LatinoJustice PRLDEF says that plans by legislators of several states to push for a law that would stop the tradition of birthright citizenship for those babies goes against the 14th Amendment.

Those pushing for a law to end automatic U.S. citizenship to those babies say they are not intimated by the threat of a lawsuit – in fact, they say, they want a court battle. They say a court fight will offer them the best chance to show that the 14th amendment was not meant to be applied to babies of people who are in the United States illegally.

“The very purpose of the 14th amendment was to insure that we would not have a caste system in which the children born in our country would have no chance of ever becoming citizens equal to all others,” said Cesar Perales, President and General Counsel of LatinoJustice PRLDEF, which is based in New York.

“It seems unbelievable that there would be politicians today that would try to in fact create this caste system—all the while claiming states' rights like the racists of yesteryear."

Pennsylvania State Rep. Daryl Metcalfe, a Republican and founder of State Legislators for Legal Immigration, said the move to end birthright citizenship is needed “to end the illegal alien invasion and urge the federal government to work with us (states) instead of against us.”

Perales said that courts have ruled repeatedly that anyone born in the United States is a U.S. citizen. Though the 14th amendment originally was ratified after the Civil War to guarantee the children of former slaves U.S. citizenship and all its protections, courts subsequently have declared that the amendment applies to babies of Native Americans and to babies of Chinese guest workers.

“States don’t give people citizenship,” Perales said, “it’s the federal government’s role. This is a political stunt, with invented arguments that are not based on law, and it smacks of racism.”

Metcalfe, whose coalition of state legislators held a press conference in Washington D.C. last week to unveil the model of a measure to end birthright citizenship, said: “The primary requirements for U.S. citizenship are dependent on total allegiance to America, not mere physical geography."

The push to end birthright citizenship is not new – but in the past, congressional measures on the matter have not gained traction, and were dismissed by immigration advocates as largely symbolic.

But some in leadership positions in Congress – such as Rep. Lamar Smith, R-Texas, Rep. Steve King, R-Iowa, and Rep. Elton Gallegly, R-California – are hawkish on immigration, and measures that in the past were considered fringe now are gaining real traction.

Last week, King of Iowa introduced a bill ending birthright citizenship. King is the vice chairman of the House subcommittee on immigration. The chairman, Gallegly, is a long-time supporter of ending birthright citizenship.

At their press conference last week, a group of state legislators who belong to the SLLI coalition, said that lawmakers in as many as 14 states plan to introduce bills this year that would deny automatic citizenship to babies of illegal immigrants.

One of the proposals SLLI crafted would allow a state to issue two kinds of birth certificates – one to babies of people legally in the United States, and a different one to babies of illegal immigrants.

The SLLI maintains that automatic citizenship for anyone born here – without regard to whether their parents are breaking the law by being here -- fuels illegal immigration.

“We need to end the incentive that encourages illegals to cross our border,” Metcalfe said.

To PRLDEF’s warning about a court battle, Metcalfe responded “Good, that’s what we expect.”

He said SLLI drafted the language in the model proposal -- which it hopes states will use in their own measures – with the idea in mind that it will surely have to be defended in court.

SLLI and many others who want to end birthright citizenship say that the amendment’s wording -- “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” – clearly does not apply to illegal immigrants and their offspring.

Metcalfe and others who see the issue as he does argue that illegal immigrants inherently are not subject to U.S. jurisdiction, so their babies are not guaranteed citizenship by the 14th amendment.

“We worked with constitutional scholars and attorneys to ensure language [in the measures] will be victorious in court battles and go all the way up to the Supreme Court,” he said.

A Pew Hispanic Research analysis last year found that that nearly four out of five – or 79 percent -- of the 5.1 million children, ages 18 and younger, of unauthorized immigrants were born in this country.

Opponents of the proposed measures say birthright citizenship is not a key motivator in illegal immigration. They say having a baby in the United States does not enable illegal immigrants to get legal immigration status. They say a U.S. citizen cannot sponsor parents for legal U.S. permanent residency until he or she reaches the age of 21 – a long time for a person here illegally to try to avoid deportation.

“Everyone in this country, whether documented or undocumented, are under the jurisdiction of the United States,” Perales said. “They are not like Native Americans, protected by tribal laws. If they break the law, they are arrested.”

PRLDEF has proven itself a force in recent years in fighting efforts by local and state officials to put laws in place to crack down on illegal immigrants.

As the lead plaintiff, PRLDEF successfully challenged an ordinance in Hazelton, Pa., that sought to sanction employers and landlords for hiring or renting to illegal immigrants. PRLDEF argued that the ordinance was unconstitutional, and the courts agreed.

PRLDEF also filed a lawsuit challenging the constitutionality of a local ordinance in Riverside, N.J., to impose sanctions similar to those of Hazelton. Overwhelmed by the legal costs, Riverside officials withdraw the ordinance.

“Spending time targeting children born in this country is unconstitutional and misguided,” Perales said. “These silly efforts will only results in these states getting sued, and their positions will be rejected. These efforts waste resources at a time when these legislatures should focus on creating jobs and fixing the economy.”

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