Trump and Bush, ‘anchor babies’ and birthright citizenship

Donald Trump has made himself the Republican frontrunner for president by advocating enforcement of U.S. immigration law and an end to birthright citizenship for children of illegal aliens. The former frontrunner Jeb Bush, trying to resuscitate his floundering campaign, has denounced “anchor babies” while continuing to advocate amnesty for illegal aliens in the U.S.

When both Republican candidates drew the predictable criticism for their remarks, Jeb Bush explained that he was mainly talking about Asians, not Mexicans, in his use of the term “anchor babies”, continuing to dig himself deeper into the hole he is in. Donald Trump, of course, doesn’t apologize for anything.

The criticism of the term “anchor babies” is mainly against the implication that illegal alien parents have children in the U.S. with the intent to “anchor” themselves here as parents of U.S. citizens who should not be deported. There’s no doubt, however, that illegal alien parents have children for many of the same reasons that parents everywhere have children. But there’s also no doubt that having produced U.S. citizen children in the U.S., illegal alien parents hope to gain legal status in the U.S. as the parents of U.S. citizen children.

Proof of that hope for legal status was seen in the enthusiastic reception for President Obama’s November, 2014, executive order for Deferred Action for Parents of Americans (DAPA), and the disappointment which followed the federal court injunction preventing it from taking effect until legal and constitutional challenges are resolved. President Obama estimated there would be 5 million beneficiaries if and when the injunction against DAPA is lifted.

According to the Pew Hispanic Center, one of every 12 babies born in the United States has at least one parent who is in the country illegally. The Washington Post and others have reported on widespread “birthright tourism,” in which pregnant tourists come to the United States to give birth before taking their babies with permanent U.S. citizenship home with them to be raised in their own culture, but with the right to return to the U.S. at anytime, and to sponsor parents for immigration to the U.S. at age 21.

The current interpretation of the 14th Amendment allows all such children, whether born to illegal aliens or temporary tourists, automatic U.S. citizenship. Many elected officials in addition to Trump and Bush have begun to question whether that interpretation is correct and whether it should and could be changed.

What the 14th Amendment says is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. …” The 14th Amendment does not say – or mean – that everyone born here is a citizen.

There are, in fact, many examples of people born in the United States who are not automatically citizens under the 14th Amendment. In every such case, the denial of birthright citizenship is based on the parents’ status.

For example, even if they’re born in U.S. hospitals, there is no dispute that the children of foreign diplomats are not citizens of the United States because they are not “subject to the jurisdiction thereof” when born in the U.S.

Children born on U.S. soil to alien enemies during a hostile occupation are not citizens for the same reason. For example, the Japanese military occupied two of Alaska’s Aleutian Islands during World War II. A Japanese child born there at the time would not be a U.S. citizen.

Children born in the United States to Russian spies returned to Russia with their parents in a prisoner exchange a few years ago. Are those children entitled to return to the United States as citizens after graduating from Russian spy school? Or should they, too, be regarded as having been born to alien enemies in hostile occupation, and therefore not citizens?

After the adoption of the 14th Amendment, the U.S. Supreme Court held that children born to American Indians were not considered U.S. citizens because of their allegiance to the tribes, even though born in the U.S. See Elk v. Wilkins, 112 U.S. 94 (1884). That exception was eventually overturned by federal legislation – which suggests that Congress has a role in the interpretation and application of the 14th Amendment.

If Congress has the power to determine who is and is not subject to the jurisdiction of the United States under the 14th Amendment, what should it do? Should it legislate that children born to illegal aliens are not in fact subject to that jurisdiction? Or that children of temporary tourists are not born U.S. citizens for the same reason?

The answers depend on whether we want to encourage or discourage various categories of noncitizens who might enter the country.

The United States has the most generous policies on legal immigration in the world. We give out more green cards granting legal permanent residence to foreign nationals – typically around a million a year – than the rest of the world’s nations combined. We also admit 80% of all the permanently resettled refugees in the world. It has always been our policy to encourage the assimilation and naturalization of legal immigrants, and clearly their American-born children should enjoy birthright citizenship.

But what about those who enter the country legally on temporary tourist visas but have no ties or loyalty to the United States? We want to encourage tourism, and most birthright tourists are in fact fairly affluent. But do we want to encourage people raised in foreign countries by foreign parents to enter the United States as citizens because their parents were birthright tourists? If not, perhaps Congress could try to limit this phenomenon by making tourist visas unavailable to pregnant foreigners who intend to give birth here.

Birthright citizenship for the children of illegal entrants and temporary visitors is an outlier in 21st century immigration and international law. Most countries in the world do not so provide. And among the developed countries of the world where migrants wish to enter, only the U.S. and Canada have birthright citizenship. None of the democracies of the European Union have birthright citizenship. Nor do Japan, Australia or New Zealand.

As anyone who follows the news knows, the world is awash with migrants seeking security and a better life in countries not their own. The developed countries of the world must decide how to respond to this large-scale unauthorized migration.

We as Americans must decide whether we have a greater obligation to our fellow American citizens than we do to all the other residents of the world. We must decide whether the nation-state and the concept of citizenship continue to be important in the 21st century.

To that end, discussion of the real and complex legal issues surrounding the 14th Amendment should be encouraged, not arbitrarily cut off. Ultimately, we and our elected representatives must decide whether we want to open the borders or enforce the numerical limits on immigration that Congress has adopted. Birthright citizenship needs to be part of the discussion. Pretending we have numerical limits but not enforcing them is not a viable policy.