Another Welcome Casualty of the Midterm Elections: Efforts to Scale Back Birthright Citizenship
An incident of anti-immigrant sentiment, there have been some prominent calls over the last two years or so to scale back the near absolute rule of territorial birthright citizenship under which anyone born in the United States (save the children of diplomats) is extended citizenship at birth. In the last Congress several bills were introduced that would have limited birthright citizenship to the children of citizens and legal aliens (either through constitutional amendment or by statute, the latter on the argument that territorial citizenship is not constitutionally required). These proposals were getting press (see here and here), and some legislators and restrictionist advocates clearly saw a political payoff to pressing the issue.
I don’t think these efforts were going anywhere, unlike related proposals on the immigration policy front. Even though the Supreme Court has never directly held that the children of undocumented immigrants are entitled to citizenship, as a matter of constitutional practice the birthright citizenship rule is entrenched. It easily weathered similar attacks during the last major bout of restrictionist resurgence in the mid-1990s, then notwithstanding the challenging work of scholars Peter Schuck and Rogers Smith which lent some intellectual respectability to the campaign. More recently, Yaser Hamdi’s case offered the Supreme Court a chance to take up the question. Hamdi was born in Louisiana during his father’s short stint there as an oil worker, but he had no other organic connection to the US; an amicus brief from Chapman Law School’s John Eastman arguing against his citizenship status found no takers among the Justices.
But if there were any traction to the amendment proposals, they are now clearly dead in the wake of the midterm elections. Immigration control failed to resonate as an issue with voters, and several prominent restrictionist candidates went down to defeat. What that means for immigration reform may be unclear – I tend to think that it presents a major opportunity, given President Bush’s receptivity to balanced solutions, though other articulate observers have suggested otherwise – but it surely will put an end to any mainstream discussion of scaling back birthright citizenship. Coupled with the 1990s episode, I think we can now take territorial birthright citizenship as tested and settled.