States To Take a Stab at Birthright Citizenship

by Peter Spiro

Julia Preston’s lead story in yesterday’s NYT Times highlighted the shift to state governments as immigration battlegrounds.  Several are looking to be SB 1070 copycats.  I don’t think those will go anywhere in the face of quiet but intense opposition from the business community, who want the cheap labor and who don’t want to be in the cross-hairs of the sort of boycotts that have been aimed at Arizona concerns.

The new development here is an effort to take on birthright citizenship from the bottom up:

The newest initiative is a joint effort among lawmakers from states including Arizona, Oklahoma, Missouri and Pennsylvania to pass laws based on a single model that would deny American citizenship to children born in those states to illegal immigrants. The legislators were to announce the campaign in Washington on Wednesday.

The states may have some wiggle room when it comes to immigration law enforcement.  But citizenship is altogether out of their league.  Unlike immigration — the power over which the Constitution nowhere expressly allocates — we’ve got the 14th amendment as well as the Naturalization Clause as evidence of exclusive federal authority.  It doesn’t make a lot of sense to devolve citizenship determinations to the states, for fear of states that will be too lax as well as too strict.  If any of these state measures were enacted, there’s pretty much zero chance that they would stand up in federal court, and the likes of Russell Pearce and Kris Kobach have to know it.

So what’s the motivation?  It could just another PR stunt from those intensely frustrated by the stalemates in Washington, by way of bringing attention to birthright citizenship at another level after many years of failed attempts to scale it back in Congress.  But I wonder if proponents might be looking for a vehicle to put the underlying question on the judicial table.  The courts have never squarely held that the children of undocumented aliens are covered by the Citizenship Clause.  Could state laws on the question present such an opening?  My guess is that the courts would duck the merits and dispose of the case on federalism grounds.  At most, proponents get some judicial speculating. This initiative may get a big roll-out, but it isn’t going to stick.

UPDATE:  Here is the Arizona bill.  Another front page story from the NYT.  I’m sorry, but this is pretty goofy.  I’m more willing to accept state-level action (the good and the bad) on immigration than most folks, but it just doesn’t work with citizenship.

http://opiniojuris.org/2011/01/03/states-to-take-a-stab-at-birthright-citizenship/

One Response

  1. They do have an argument against 14th amendment citizenship for illegal immigrants.  Not a good one, in my opinion, but an argument nonetheless.

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