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States' lawmakers plan laws to redefine citizenship

  • Washington Post
  • Published Thursday, Jan. 6, 2011, at 12:04 a.m.

WASHINGTON — In a move certain to escalate the legal tug of war over illegal immigration, state lawmakers from across the country announced Wednesday that they were launching a united effort to prevent the U.S. Constitution's 14th Amendment, which grants citizenship to all children born in the United States, from applying to children of illegal immigrants.

State lawmakers from Arizona, Pennsylvania, Oklahoma, South Carolina, Georgia and other states said they were taking aim at birthright citizenship and seeking to return the interpretation of the 14th Amendment to what they described as the original intent of its creators.

Several state legislatures are expected to introduce bills within weeks that would set the groundwork for such a reinterpretation. Proponents, almost all of whom are Republican, said their strategy is explicitly designed to draw legal challenges and to have the Supreme Court ultimately decide on whether the 14th Amendment should apply only to children with at least one parent who is a permanent resident or a citizen.

Civil rights groups denounced the move and said it was motivated by thinly disguised racism against Latino immigrants. They also said that Supreme Court precedents had already made clear for more than a century that the 14th Amendment applied to all children born in the United States, regardless of whether their parents were legal immigrants.

About 340,000 children were born in the United States to illegal immigrants in 2008, according to a study released in August by the Pew Hispanic Center. Thousands of children born to tourists and foreign students could also be denied citizenship if the 14th Amendment were reinterpreted.

The move is the latest example of states testing the boundaries of federal control over immigration law. Proponents said they were not usurping control over the federal government, but acting in self-defense against what one termed an "illegal alien invasion."

"The federal government's inability to protect our borders has turned every state into a border state," said Oklahoma state Rep. Randy Terrill, a Republican.

Pennsylvania Republican state Rep. Daryl Metcalfe said that he was planning to introduce legislation within weeks and that proponents had obtained support from legislators in about 40 states. Metcalfe said he expected about 20 states to introduce legislation soon, among them Pennsylvania, Arizona, Nebraska, Alabama, Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, New Hampshire, Oklahoma, Texas and Utah.

"It's hard to imagine a more quintessentially anti-American proposal than one that would judge a person by their parents or grandparents or great-grandparents," said Lucas Guttentag, who directs the Immigrant Rights Project at the American Civil Liberties Union. Guttentag said that the ACLU would counter any effort to challenge the 14th Amendment.

Dual approach

Proponents of the new strategy said they would adopt a two-pronged approach. The first is to introduce bills in state legislatures that revive the concept of "state citizenship." Only children with at least one parent who is a U.S. permanent resident or citizen would be granted state citizenship.

Kris Kobach, professor of law at the University of Missouri at Kansas City and the secretary of state-elect for the state of Kansas, said that denying state citizenship to the children of illegal immigrants would not prevent the federal government from granting those children U.S. citizenship. But he said that granting state citizenship would draw a symbolic line between children born to illegal immigrants and those born to permanent residents and U.S. citizens.

The second prong of the strategy offers a more direct challenge to the authority of the federal government by using what is known as a state compact to draw a distinction between the children of illegal immigrants and those of legal permanent residents and U.S. citizens.

A compact is a legal term that describes a measure passed by a state that requires congressional approval but no action by the president. If both houses of Congress approve a state compact, it will have the effect of federal law without requiring the signature of the president, Kobach said.

The state compact would issue different birth certificates to children of permanent residents and U.S. citizens from those of illegal immigrants, tourists and foreign students. The birth certificates would draw a distinction between those children whose parents are "subject to the jurisdiction of the United States" — a phrase from the 14th Amendment — and other children whose parents are not.

Kobach and other proponents said that because illegal immigrants are in the country illegally, they are not under the jurisdiction of the United States.

Effectively, states would be throwing down the gauntlet to Congress to deny citizenship to children who do not have at least one parent who is a permanent resident or a citizen.

Kobach said that the two-pronged strategy is designed to elicit an immediate legal challenge and get the ball rolling toward a Supreme Court reinterpretation of the 14th Amendment.

"We teed this up for the court because we thought the court would agree with us," he said.

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