Birthright Citizenship Legislation

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State lawmakers introduced legislation that they hope leads to the elimination of automatic birthright citizenship for the children of illegal immigrants. ASU law professor Andy Hessick discusses the legislation.

Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. State lawmakers today introduced legislation that they hope will lead to the elimination of automatic birthright citizenship for the children of illegal immigrants. The bills define an Arizona citizen as someone having at least one parent who is either a U.S. citizen or a naturalized citizen. The law would also call for different state birth certificates for those born to illegal immigrants. Here to give us his legal take on the bills is Arizona State University law professor Andy Hessick. Good to see you again. Thanks for joining us.

Andy Hessick: Thank you for having me.

Ted Simons: An Arizona citizen, according to this legislation, must be a U.S. citizen. A U.S. citizen would have to be born in the U.S. and have one parent either a U.S. citizen or a naturalized -- am I there?

Andy Hessick: That's correct.

Ted Simons: What's wrong with that?

Andy Hessick: Well, there are a few problems with it. The main one is that it looks like it conflicts with the 14th amendment, which defines citizenship. For United States to be -- to be a United States citizen. The 14th amendment says all people born and subject to the jurisdiction of the United States are citizens of the United States. And historically it looks like the phrase "subject to the jurisdiction thereof" meant anyone born within the jurisdiction of the United States would be a citizen of the United States in respective of the status of their parents.

Ted Simons: OK. We've had folks on the program, some of the lawmakers who have helped craft this bill saying that subject to the jurisdiction thereof, applies to those who owe sole allegiance to the United States.

Andy Hessick: Right. But first of all, I guess where they're getting that is from bits of history, from maybe some English common law and some comments during the enactment of the 14th amendment or the drafting of the 14th amendment. But there are a few points that have to be clear. First of all, the statements that were made in the drafting of the 14th amendment, talking about complete allegiance to the United States, those were made in the context of talking about whether or not Indians who were in the United States but farther west in areas not controlled by the United States, would be citizens, whether their children would become citizens because they were born technically within the borders of the United States. And there was a bit of a debate about that. And the way they phrased it was, these Indians were born within the United States, but they're not really completely bound to the United States. And so the way they phrased it is to say they're not subject to the jurisdiction of the United States. The phrase "subject to the jurisdiction of the United States" means pretty much you're bound by the laws and the laws can be enforced against you. The Indians although they were bound by the laws, couldn't have the laws enforced against them because of various restrictions in the law and impracticalities. So they were deemed not to be completely within the jurisdiction. And that's a long way of -- where they got that phrase.

Ted Simons: When we have folks who say subject to the jurisdiction thereof, they're not subject, because you can't draft them in the military, they can't serve on jury duty, and these sorts of things, so there is a line they say, you say --

Andy Hessick I say you're still subject to the jurisdiction of the United States when you're in the United States. Subject to the jurisdiction means the laws can be applied against you. Anyone in the United States can have the laws applied against them if they commit a crime for example, they can be tried and convict and punished for that crime. Now, there are people who are not subject to the jurisdiction of the United States who are within the United States. And that's diplomats, for example they get diplomatic immunity. And traditionally those -- the children of diplomats were not deemed to be citizens when they were born because their parents were not subject to the jurisdiction of the United States. So the children were deemed not to be subject to the jurisdiction of the United States.

Ted Simmons: We've also had arguments that the 14th amendment was based on the civil rights act of 1866, and subsequent slaughterhouse cases which dealt with -- a lot with states' rights, but in discussing this case and in going through it, the Supreme Court also mentioned things regarding United States and citizenship. When people bring up the slaughterhouse cases, is that something that the Supreme Court or any federal court might want to look back on and say, hmm, maybe we need to reconsider this?

Andy Hessick: Yeah. So the slaughterhouse cases was decided in the late 1800s. And in that -- that case was about states' rights as you said. But in the course of deciding that case, the Supreme Court did make a statement that could be support for the argument that for child born in the United States to be a citizen, their parents, at least one of the parents has to owe allegiance to the United States. But that statement was made just -- what we call dicta. It wasn't part of the real ruling of the case. It was about states' rights. This was a throw-away line in the middle. Subsequently the United States Supreme Court has ruled on this issue. About 10, 20 years later it did. And in that case, it took a position different from what was in the slaughterhouse cases, and it said that the status of the parents doesn't really matter aside from diplomats.

Ted Simons: And that was the case involving Chinese immigrants correct?

Andy Hessick: That's right.

Ted Simons: Everything preceding that, it sounds like you're saying folks who bring up Jacob Howard and his jurisdiction phrases, you know, he came up with the jurisdiction thereof for the 14th Amendment, and he was saying this doesn't include people born in the United States, foreigners, aliens, then you jump up a little bit to the slaughterhouse cases, you're saying something maybe taken a little out of context was mentioned as well. Is this cherry picking, to try to find something that said somewhere along the line -- is that what you think these folks are doing?

Andy Hessick: I do, to some extent. This method of constitutional argument that they're engaging in is what they call originalism. The way that works is you look back historically at history to see if there's any evidence to support your position. And when this provision was written, people did disagree a little bit. But if you're going to use this method of history, you have to sort of look to see what the stronger side was. What the stronger evidence supports. And there is some evidence to be sure, maybe Howard's statements, maybe statements in the slaughterhouse case, that support the position that's articulated in the bills. But there's much more evidence that goes the other way.

Ted Simons: Including that case in what, 1898?

Andy Hessick: I think it's 1898.

Ted Simons: And since then has there been much in the way of challenge to this?

Andy Hessick: I don't think so. There's been some talking about it, there's been some occasionally you'll hear some academics will raise something, and I guess some people raised something in the 1980s, but nothing major in the courts.

Ted Simons: Let's get to this birth certificate situation. Interstate Birth Certificate Compact. Again, it sounds as though states are OK with birth certificates, but when it comes to citizenship, where do states stand?

Andy Hessick: Well, states have the power to issue birth certificates. That's not controlled by federal law. But I guess this compact, this law that was -- that was introduced, it says that different birth certificates shall be issued that those will be citizen and those that will be noncitizens. But it's funny, because birth certificates may be controlled by state law, that I to say that states get to say who gets a birth certificate. But the states don't define who is a citizen. That's much more -- that's in the 14th Amendment. It's not really the state's prerogative.

Ted Simosn: So if states, a bunch of states want to get together, have an interstate compact and they decide who's a citizen and who's not, you're saying nowhere near constitutional.

Andy Hessick: I think there are mugs presidential problems. One is that, I can list a few. One is that we already have the 14th Amendment and Supreme Court rulings are that suggest their definition is not on point. The second is that if anyone gets to say what the 14th Amendment means, it's the courts. The Supreme Court ruled that just maybe 15 years ago. And they've said it in other cases. The third thing is that even if a legislature could define what the 14th Amendment meant, it wouldn't be the place of the states to do it, it would much more likely be Congress's place because the 14th Amendment has a specific provision that says, it's Congress's job to enforce the 14th Amendment. And the fourth thing is, this interstate compact, this doesn't render it unconstitutional really, but interstate compacts, agreements among the states, they need to be approved by Congress. I think they do. I should double-check that but I think they do.

Ted Simons: OK. So in other words, a variety of problems here. So if this is passed by the legislature, and if the governor goes ahead and signs this, and this moves, and it's going to be challenged, how far does it go in the courts? Obviously the backers want to see a Supreme Court challenge. Will it get there?

Andy Hessick: So it depends on how the lower courts rule. I suspect -- I think there's a decent chance that it would get there, because if the lower courts strike down the law, then that results in a state law being struck down and the Supreme Court is generally pretty receptive to taking cases that strike down state laws. On the other hand if the state law is upheld, then that's going to result in a conflict with the older Supreme Court case. So again, that's a good reason for the Supreme Court to take the case. So there's no guarantee, but this seems well teed up to make it before the Supreme Court.

Ted Simons: Interesting. Good stuff. Andy, thanks for joining us.

Andy Hessick: Thank you.

Andy Hessick:law professor, ASU;

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