Birthright Ballyhoo
In resisting birthright citizenship reform the Democrats have jumped the shark. Except, obviously, for Hispanics, most people understand and disapprove of "anchor babies." At the same time, most people don't understand the 14th Amendment and are hopelessly confused about the constitutional issues at stake. Republicans, betraying their chronic lack of intellectual firepower, are pushing for an Amendment to the 14th Amendment, which is constitutional overkill when simple legislation could provide a fair solution. Charitably, one might ascribe an abundance of caution to the Republican strategy except that it's pretty clear few of them have bothered to read through the relevant texts. Yes, it's a chore, but that's what legal precedent is all about.
The closest the Supreme Court has ever come to dealing with an issue related to the citizenship of the children of illegal aliens was Wong Kim Ark, in 1898, which found that the child, born in the U.S. of legal Chinese aliens, was a citizen. It's a very convoluted, sloppily argued, excessively wordy opinion. But if one takes time to read through it, it's abundantly clear that nowhere, not even in the dissent, have any Justices contemplated the possibility of illegal aliens having children with birthright citizenship. Wherever the majority opinion mentions "aliens," and their status is qualified in some way, it's always the case that they are "resident," engaged in a lawful occupation. The context cannot be misunderstood. Later commentators seem to have seized upon the carelessness with which the opinion was written, alternating indifferently as it does between an explicit qualification of aliens and plain old unspecified aliens who just happen to be around. The fact that qualified and unqualified terms were used interchangeably does not imply that the Court recognized two distinct classes of aliens, but merely that Justice Gray (or his clerk) had a miasmic notion of verbal shorthand. All aliens were presumed to be legal. Birthright citizenship for the children of illegal aliens is a different case.
Back in 1995 the Justice Department's Office of Legal Counsel offered an analysis opposite to my own in congressional testimony. But the OLC selectively interprets Wong Kim Ark: its analysis is entirely unconvincing, declamatory rather than carefully reasoned.
If the Republicans were smart they would seek legislation that either finally clarifies the situation or is brought before the Supreme Court. In November, in addition to whatever else they amass, on that platform alone they could pick up several seats in the House and a couple in the Senate. Working the Amendment angle, however, will produce more heat than light.
Posted by George Kenney on August 5, 2010 10:55 PM 
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Comments
It's not really a question of stupidity on the part of the GOP, it's insincerity. They have no intention of doing anything about this — it's just rhetoric designed for the fall campaign. Leaderships of both parties — to be a bit tiresome — are tools of the same ruling elite and mainly differ on the ways they pander to their respective bases.
The duopoly needs to broken up. I think the best way to start would be to get propositions on the ballot in states with initiative and referendum to:
(1) elect state legislatures via PR,
(2) create very easy ballot access for third parties,
(3) elect executive offices by approval voting or two-round runoff.
[Doing some back of the envelope math, about 7% of live births in the U.S. are to illegal immigrant parents. In border states it's much, much higher. Don't kid yourself that this isn't an issue that resonates with a majority of the public. And while I completely agree with your structural suggestions, this issue is also profoundly structural in nature, even more so than voting reforms. To quote from a 1999 article by Charles Wood in the Harvard Journal of Law & Public Policy,
(Email me if you'd like a .pdf of the article.) g.]Posted by: lobo | August 7, 2010 3:30 PM
Lobo's got a point there.
Aside from that, the problem with our immigration system has nothing to do with birthright babies or whatever else Republicans dream up to get an often ill-thought-out response from Democrats. It has to do with enforcing immigration laws (which the Reps) don't want to do, in making the various stages of immigration humane, clear, and simple (Reps don't like that either and the process is appalling). Suppose people at the border were handed a blue card at point of entry allowing them x months or years to either work temporarily (and pay taxes) or apply for residency. Suppose we cracked down on employers — really cracked down — and gave heavy fines and/or jail time to those hiring undocumented workers. Suppose a child born to an immigrant with anything less than full-fledged residency or naturalization papers were included in our educational system pro-tem but who was not given citizenship?
What we do now is to make it hard to attain any level of legitimacy. No wonder people coming in duck the issue. We also allow employers to get away with deliberately hiring the undocumented — a real crime.
[Those illegal immigrants already here (with a few exceptions, such as the 21 year old single male who crossed the border yesterday) should be given a reasonable path to citizenship and the border should be closed (through a combination of serious employer sanctions, a national ID card — an abomination, but at this point a necessary one — and stepped up border patrols), but the problem is that both must happen simultaneously. Either without the other won't work. Unfortunately, both the Republicans and the Democrats have too many vested interests in keeping things the way they are. But to think that the close to 10% of live births in the U.S. being to illegal immigrant parents is not a problem would be to make a huge mistake. And ask yourself, what could happen if the situation festers another couple of decades? At that point, instead of reform that grandfathers in those who had already been born here the politics of a crisis might well (and I think probably would) revoke citizenship for a large group of people. What I see happening is the Balkanization of our southern border states, which worries me.
In any case, what I keep trying to point out is, if you're a progressive and want things such as a livable minimum wage and universal, single-payer health care, you've got to deal with immigration because having an effectively unlimited supply of cheap labor makes those reforms practically impossible. g.]
Posted by: PW | August 15, 2010 12:57 PM