Treason Lobby Does Damage Control On Birthright Citizenship

[CrackSmokeRepublican]

Treason Lobby Does Damage Control On Birthright Citizenship

July 9, 2010 · Print This Article

By Washington Watcher

The Treason Lobby is getting very nervous about the issue of birthright citizenship—the current interpretation of the Fourteenth Amendment that gives U.S. citizenship to everyone born in the U.S., including the children of illegal aliens.

Arizona State Senator Russell Pearce, who introduced the anti-illegal alien SB 1070, indicated he would like to introduce a bill to deny birthright citizenship on the state level. Legislation is already pending in Texas and Oklahoma plans on following suit as well. A number of U.S. Senate Candidates, including Rand Paul, are making birthright citizenship an issue during the campaign. A June 3 Rasmussen poll found that 58% of US voters opposed giving birthright citizenship to the children of illegal aliens while only 33% supported it.

In the past, the usual suspects just dismissed birthright citizenship as a fringe issue. But now they are getting worried there appears to be a concerted attempt to push back.

Recently, both the Washington Post and Chicago Tribune ran simultaneous Op Eds defending birthright citizenship—by Harvard Professor Edward Schumacher-Matos, an immigrant (formerly illegal) from Colombia; and libertarian Steve Chapman, respectively. Both appear to be getting their misinformation from the same talking points, as their columns were nearly identical. [Denying citizenship for illegal immigrants' children is a bad idea, by Edward Schumacher-Matos, Washington Post, June 27, 2010. Citizenship Should Remain a Birthright, by Steve Chapman, Chicago Tribune, June 27, 2010.]

As Americans wake up to the problem of birthright citizenship, we can expect to see these same falsehoods repeated over and over—just like the mindless mantras that infest the immigration enforcement debate, such as "you can't deport 12 million people" and "illegal immigrants are doing the jobs Americans won't do".

Myth 1: The term "Anchor Baby" is improper, because you cannot sponsor your parents until you are 21.

Chapman [Email him] writes:

    "True, an undocumented adult can be sponsored for a resident visa by a citizen child—but not till the kid reaches age 21. To imagine that Mexicans are risking their lives crossing the border in 2010 to gain legal status in 2031 assumes they put an excessive weight on the distant future."

WW refutation: Given U.S. failure to enforce immigration law, it is not unreasonable for an illegal alien to assume that they can live here illegally for 21 years and then receive sponsorship from their US Citizen children.

Indeed, I could accuse Chapman of racism for assuming that Mexicans have short time horizons—Seattle Public Schools list having long time horizons as a form of "cultural racism".

However, it is not family sponsorship that makes the children of illegal aliens "anchor babies"—it's the fact that it then becomes incredibly difficult to remove their parents.

You need only look at the Treason lobby's own rhetoric about how enforcing our immigration laws is tearing families apart to see how birthright citizenship is used as a way to prevent enforcement against the illegal alien parents. President Obama was at it again in his recent immigration speech—he specifically said we cannot deport illegal aliens because

    "it would tear at the very fabric of this nation—because immigrants who are here illegally are now intricately woven into that fabric. Many have children who are American citizens."

Of course family reunification can occur on both sides of the border. But the anchor baby provision is an enormous incentive for illegal aliens to stay here.

In fact, of course, propaganda aside, American immigration law specifically allows for exceptions in the case of "extreme hardship" caused by deportations.

Indeed, immigration lawyer Bruce Hake [Email him] has created the "The Hake Hardship Scale: A Quantitative System For Assessment Of Hardship In Immigration Cases Based On A Statistical Analysis Of AAO [USCIS Administrative Appeals Office] Decisions" for the American Immigration Lawyers Association. Hake assigned points to various "hardships" that an illegal alien could appeal on.

In general, a score of 10 would be successful. Hake gave five points for the first US citizen child, and another for each child thereafter. [The Hake Hardship Scale: A Quantitative System For Assessment Of Hardship In Immigration Cases Based On A Statistical Analysis Of AAO Decisions, by Bruce A. Hake and David L. Banks, Immigration & Nationality Law Handbook, 2004]

With enough creativity and a few dollars, an immigration lawyer can try to make even one anchor baby reason enough. To get an idea of how this works, the Forensic Psychology Group's website gives examples of different types of "expert testimony" they can provide at immigration hearings.

    "In extreme and exceptional hardship cases, if one parent has to leave the United States, it can produce a separation anxiety disorder on the part of the child left behind. Some children, especially those who are very young and lack the emotional maturity to understand why a parent might have to leave the United States, might also develop a depressive disorder." [Immigration Law, Forensic Psychology Group.]

And if that child is also a US citizen, it becomes a pretty substantial anchor to prevent deportation.

Moreover, the same supporters of birthright citizenship are trying to make it even more difficult to deport illegal alien parents of anchor babies. Solomon Ortiz's (D-TX) Comprehensive Immigration Reform ASAP Act of 2009, which has over 100 co-sponsors, moves from "extreme hardship" exceptions to prohibiting the detention of illegal aliens who have children(any children, not just American citizen children)except in "exceptional circumstances." [H.R. 4321. Title I, Sec. 162]

Myth 2: Birthright citizenship does not encourage illegal immigration

Chapman argues:

    "One study cited in Peter Brimelow's 1996 anti-immigration screed, Alien Nation, found that 15 percent of new Hispanic mothers whose babies were born in Southern California hospitals said they came over the border to give birth, with 25 percent of that group saying they did so to gain citizenship for the child. But this evidence actually contradicts the claim. It means that 96 percent of these women were not lured by the desire to have an 'anchor baby.'"

WW refutation: Once again, I could accuse Chapman of being "racist" for falsely assuming that every single Hispanic woman in Southern California is an illegal alien. Of illegal aliens, the number is necessarily much greater than 4%.

Schumacher-Matos writes:

    "Pregnant Mexican women from border towns do commonly cross just to have a baby in the United States. But their extended families have often straddled the border for a century or more. The women tend to be middle class, pre-pay the hospitals in cash and go home, though their children can someday return."

I do not see how Mexican citizens choosing to have their child born in the US, just so it will have to option to immigrate here in the future, is any less of reason to oppose birthright citizenship.

Schumacher-Matos [Email him] acknowledges that a "A handful of tourists do the same, but the total of all these is minuscule." As usual, there are no good statistics on just how many people come to the country to give birth, but we do know it's far from "miniscule". There is an entire "birth tourism" industry complete with hotels specifically for pregnant women to have US citizen children.

Schumacher-Matos continues:

    "Significant are the 4 million children in 2008 with one or more unauthorized immigrant parents spread throughout the country, according to the Pew Hispanic Center. Repeated studies, however, show that their parents came for jobs or to join family. The children were normal byproducts of life, and not an immigration strategy."

But no one is arguing that birthright citizenship is the only reason why illegal aliens come here, or even why they stay. Nevertheless, when we have somewhere between 12 and 20 million illegal aliens living in our country, a few percentage points has a lot of consequences.

Myth 3: Birthright citizenship has repeatedly been upheld by the courts, and was the intention of the drafters of the 14th Amendment.

Chapman claims that ending birthright citizenship "overthrows two centuries of legislative intent and court rulings" Both he and Schumacher-Matos mention the Plyler vs. Doe case, forcing school districts to accept illegal alien children, as an example.

WW refutation: In fact, the Fourteenth Amendment is Reconstruction legislation and therefore less than 150 years old.

Plyler was a terrible decision. But it did not rule on the issue of birthright citizenship—merely on public education for illegal aliens. It did, as Chapman and Schumacher-Matos note, state that the illegal aliens fit under the Jurisdiction Clause of the 14th Amendment. But it is up to future Supreme Court justices to decide exactly how far they wish to take it.

Furthermore, the Supreme Court was much more liberal when it ruled in 5-4 in Plyler than it is today. Even Sandra Day O'Connor voted against the illegal aliens in that case.

Chapman also alludes to the 1898 case United States v. Wong Kim Ark. But this dealt with a legal permanent Chinese immigrant, not an illegal alien.

Schumacher-Matos goes back further to the actual debates over the Citizenship Clause:

    "Go back... and read the transcripts of the 1866 debate in the Senate and you find that both those for and against the amendment readily acknowledged its application to illegal immigrants. A Pennsylvania senator [Edgar Cowan], for example, objected to granting citizenship to the children of aliens who regularly commit 'trespass' within the United States. The concern then was with babies of gypsy or Chinese parents.

    "But Congress and the ratifying states opted instead to uphold a founding principle of the republic that was fundamental to the peaceful building of a multiethnic immigrant nation, however imperfectly. In a world plagued by bloody ethnic conflicts, that concern remains valid."

Here, Schumacher-Matos falsely implies that the Amendment passed over these objections. But in fact Cowan's objections were satisfied by Lyman Trumbull, of Illinois who was chairman of the Judiciary Committee at the time. He explained that the Citizenship Clause

"will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

(WW emphasis).

Trumbull continued:

"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' ... What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."

Keep in mind that Schumacher-Matos argues in the same column that it is perfectly unobjectionable for Mexicans who plan on staying in Mexico themselves to go across the border so that their children can have US Citizenship.

Senator Jacob Howard of Michigan who wrote the Citizenship Clause was even clearer stating the Amendment

    "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." [Amicus Brief No. 03-6696, Hamdi vs. Rumsfeld, Center for American Unity]

Myth 4: Anchor Babies do not receive any additional welfare

Chapman writes: "Some of the main benefits available to undocumented foreigners, such as emergency room care and public education for children, don't require them to have a U.S. citizen child. Illegal immigrant parents are ineligible for welfare, Medicaid, food stamps and the like. They can be deported."

WW refutation: Chapman here debunks his own argument (as well as the libertarian cliché "Don't end immigration, end the welfare state!").

Of course, he is correct that the biggest fiscal drain caused by illegal aliens is education and hospital Emergency Rooms, which the courts have unfortunately made off limits. But this is an argument against further illegal immigration—because it overcrowds our schools and shuts down our hospitals—not an argument against birthright citizenship.

Nevertheless, although illegal aliens drain our economy through jails, hospitals and education, anchor babies can still further break our budgets in ways that illegal aliens cannot.

As Chapman notes, illegal aliens are barred from most federal means tested benefits under the 1996 Welfare Reforms.

However, their US citizen children are still eligible for these programs. And our welfare system is especially tilted to benefit those who are young and poor. Anchor babies ipso facto fit the former. According to the Pew Hispanic Center over 1/3 are living at or below the poverty level.

Additionally, the massive Obamacare overhaul specifically benefits anchor babies and their families. While illegal aliens are ostensibly ineligible for the "Affordability Credits", insurance is based on families. According to Pew Hispanic, there are 8.8 million people in "mixed families" with US citizen children and illegal alien parents. According to the Congressional Research Service,

    "it appears that the Health Choices Commissioner would be responsible for determining how the credits would be administered in the case of mixed-status families." [Is the Congressional Research Service Making 'False Claims' Too? by Mark Kirkorian, Center for Immigration Studies, August 26, 2009]

Myth 5: Ending birthright citizenship would be difficult to implement.

According to Schumacher-Matos, "Abrogating birthright citizenship additionally would create practical chaos. All Americans would have to prove their citizenship. Birth certificates would no longer do. Yet we lack a national registry of who is a citizen."

WW refutation: This is perhaps the silliest objection of all. No one is calling for retroactively stripping anyone's citizenship, so birth certificates issued prior to the law would suffice as proof of citizenship. And it does not take much of an imagination to come up with a simple non-chaotic way for birth certificates to be issued after birthright citizenship is abolished. There could be a separate birth certificate issued to children of US citizens and Legal Permanent Residents; or there could just be a box that says "US Citizen" that could be checked on the Birth Certificate.

There is a danger that, if Obama is serious about pursuing "comprehensive immigration reform" as Peter Brimelow has suggested, the birthright citizenship debate might end up getting put on the backburner by the Patriotic Immigration Reform movement. It has succeeded in defeating two amnesties and it will want to defeat this one.

But the hard truth is that the Patriotic Immigration Reform movement has made little progress getting any proactive changes in policy.

Arizona's SB 1070 put the Treason Lobby in the corner. They are trying to fight back by throwing an amnesty back at us.

Instead of being content with stopping the amnesty again, we need to keep pushing forward with

    * more state laws;
    * a moratorium on immigration, and
    * abolition of birthright citizenship.

If we want to stop amnesty, and the destruction of the historic American nation, the best defense is a strong offense.

"Washington Watcher" [email him] is an anonymous source Inside The Beltway.

Source: VDARE.com.

[Christopher Marlowe]

Myth 3: Birthright citizenship has repeatedly been upheld by the courts, and was the intention of the drafters of the 14th Amendment.

I don't think this was well refuted by the article, and relying on Plyler is mistaken. I cited that case when I was looking at the constitutionality of the AZ immigration law, (and found some interesting quotes that made me think the immigration law had a strong chance - One sticking point is whether the state law is pre-empted...)

I think Plyler is not the case to cite because Plyler dealt with the right of States to deny elementary education to the children of illegals, who are themselves "undocumented". The case was not about the citizenship of children:

The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.

The court found that the law violated the rights of the children, but it didn't say that 1) Elementary eduction was a fundamental right (which would mean that the law would be given strict scrutiny, and that is the death knell for most laws); 2) Illegal Aliens are a protected class, in fact it said the opposite.  

These well-settled principles allow us to determine the proper level of deference to be afforded § 21.031. Undocumented aliens cannot be treated as a suspect class, because their presence in this country in violation of federal law is not a "constitutional irrelevancy." Nor is education a fundamental right;

The court invalidated the bill because it

imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining [p224] the rationality of § 21. 031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State.

I happen to agree with the court's finding in Plyler because children don't really have the choice of their legal status in any country. They are only in the country because their parent brought them.  Denying the children access to education will only raise a generation of ignorance, and that is not helpful to anyone.  

[I'm totally getting side-tracked, but I'll just finish by saying that the level of scrutiny in Plyler was called, "Rational Basis With Bite", which means that the court pretended to apply rational basis  scrutiny to the law, but gave a much closer scrutiny because the law was perceived as the class involved was "quasi-suspect". The policy here is that the court doesn't want to increase the suspect classes, so instead it does a one-off, arbitrary judgment to render "justice" in that instance. It's really kind of bullsh*t. I would have made primary education a basis right.]

Anyway, the issue here is the 14th Amendment, which gave citizenship to anyone born in the US:

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

That's pretty clear: If you are born in the US, you are a US citizen.
The other case referenced is United States v. Wong Kim Ark:

Wikipedia:
Wong Kim Ark... was born in San Francisco, California, sometime between 1868 and 1873.  His father, Wong Si Ping and his mother, Wee Lee were immigrants from Taishan, China and were not United States citizens.

In 1890 Wong's parents returned to live in China. Later that year Wong himself traveled to China and, when he returned to the U.S., authorities granted him entry "upon the sole ground that he was a native-born citizen of the United States." Four years later, however, the circumstances had changed, as Wong, who was employed in San Francisco as a cook, sailed to China on another temporary visit in 1894. When he returned to the U.S. in August 1895, he was detained at the Port of San Francisco by the Collector of Customs, who denied him permission to enter the country — arguing that Wong, "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China."
 Background

In 1882, the Congress of the United States had enacted a law, known as the Chinese Exclusion Act, prohibiting persons of the Chinese race from coming into the United States or becoming naturalized U.S. citizens. Chinese immigrants already in the U.S. were allowed to stay, but were ineligible for naturalization; and if they left the U.S., they generally could not return.

However, the Fourteenth Amendment to the United States Constitution, ratified in 1868 after the Civil War, states the following concerning citizenship: 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.
Issue

The Supreme Court, in the Wong Kim Ark case, was called upon to decide whether an American-born person of Chinese ancestry could constitutionally be denied U.S. citizenship and excluded from the country.
[edit] Opinion

In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth.
Rationale

The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions (plus a third condition, namely, that Indian tribes were not considered subject to U.S. jurisdiction) - and that since none of these conditions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens (and were, in fact, ineligible ever to become U.S. citizens because of the Chinese Exclusion Act). The opinion emphasized the fact that "...during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China".

Since Wong was a U.S. citizen from birth, the restrictions of the Chinese Exclusion Act did not apply to him. An act of Congress, the majority held, does not trump the Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."
Dissent

Chief Justice Melville Fuller, in a dissenting opinion joined by Justice John Harlan, argued that the history of U.S. citizenship law had broken with English common law tradition after independence—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance. The minority argued that the principle of Jus sanguinis (that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence.

Pointing to the language of the Civil Rights Act of 1866, which declared to be citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed", and which was enacted into law only two months before the 14th Amendment was proposed by Congress, the minority argued that "it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power' . . . ." They thus reasoned that the majority opinion exactly contradicted the original intended meaning of the 14th Amendment.

In the view of the minority, excessive reliance on Jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "...the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not".

The dissenters acknowledged that other children of foreigners — including freed slaves — had, through the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of (1) strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, (2) Chinese laws of the time which made acquiring a new citizenship or renouncing allegiance to the Chinese emperor a capital crime and (3) the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship.

The article dismisses Wong Kim Ark, explaining that Wong

dealt with a legal permanent Chinese immigrant, not an illegal alien.

That's not really a fair rendering of Wong. After reading the case, you can see that the case is nearly on all fours. The status of one born in the US is that of citizen, and the Constitution is very clear on that point. The only possible difference is the the status of the parents: Wong's were legal immigrants. There is no test case here, so we can't say whether the child involved is from parents who are undocumented immigrants or legally in the country, but without citizenship status.  

Let's assume that the child is from illegal parents, since the other result would fit perfectly with Wong, and thus render the same verdict.  The finding of the majority was that the Constitution was based on Jus Soli, rather than Jus Sanguinis, and this is obvious from the document itself. This seems to say that the child's being in the US at the time of birth is more important than the nationality of the parents.

The elements mentioned were:
1) a child born in the United States
2) of parents of foreign descent who,
3) at the time of the child's birth are subjects of a foreign power
4) but who have a permanent domicile and residence in the United States
5) and are carrying on business in the United States,
6) and are not employed in any diplomatic or official capacity under a foreign power, and
7) are not members of foreign forces in hostile occupation of United States territory,
.....becomes a citizen of the United States at the time of birth.

Number 4 is the only element that is not met here.  Number 7 would be a stretch, don't you think? That being said, I'm sure that a lawyer would make that argument: illegal aliens are in hostile occupation...  But that's not what the words meant historically. That they are capable of that meaning gets away from the whole point of a holding

Distinguishing this case from Wong on the basis of 4 might be a stretch, especially in light of the soli/sanguinis interpretation that places a greater emphasis on the child's place of birth rather than the status of the parent.  

Handicapping:
Judging from the state of the court, it could go either way. The same judges who voted to uphold the 2nd Amendment (Scalia, Thomas, Alito, Kennedy, Roberts) might give a thumbs up to this law, but I think it goes against the plain meaning of the words.

[Christopher Marlowe]

Thinking over this list again, I believe that the policy of granting citizenship to children of illegal aliens runs contrary to the intent of the 14th Amendment clause.

Looking at #4 and 7:
4) but who have a permanent domicile and residence in the United States
7) are not members of foreign forces in hostile occupation of United States territory

The idea behind those two elements seems to be that people giving birth to US citizens are present in the country with the blessings of the nation. The reasoning behind #7, taken from the common law, expresses that idea clearly: if a hostile nation could gain citizenship by having children, they could take over legal control in that manner. Therefore, the parents must be in the country with the blessings of the country.

Yeah, so I change my mind. Wong is still right. But I agree with the reasoning behind trimming back on Wong's broad interpretation. If Elements #4 & #7 are Constitutional, there seems to be no problem with the requirement that the birth parents are legally in the country.  

I would still handicap this hypothetical vote in the same way.

[CrackSmokeRepublican]

BTW... very interesting commentary C.M.  

Obama needs repatriation... -- CSR