For over a decade Republicans have controlled the House of Representatives; Republicans also now control the Senate, and for nearly five years we have also had a Republican president. You would think that the “fiscal conservatism” that ALL Republicans (including self-styled moderate GOPers) purportedly espouse would have lead to a meaningful reduction in the size and scope of the federal government. But no. Things haven’t improved with respect to federal spending. In fact, federal spending is arguably worse than before the Republicans took over the reigns of government.
For instance, back in 1994, Newt Gingrich campaigned for a House majority, in part, on the basis that the federal government should have less of a role in education policy. This was a uniting principle for Republicans, since many of us believe that local school districts are best able to determine the needs of local school children. Enter George W. Bush, one of the biggest presidential spenders since the likes of FDR. Throwing out the localism of the 90’s, Bush increased federal involvement in education. And the Republican controlled Congress went along for the ride.
And the federal government grew . . . And conservatives started to wonder why the hell we were sending Republicans back to Congress when the government keeps getting bigger.
Now, perhaps to shore up their base with “red meat” conservatives, certain members of Congress (the primary one being Republican Tom Tancredo of Colorado) have rehabilitated a silly, no make that a STUPID, idea – Introduce legislation prohibiting children of illegal immigrants from being deemed citizens under the federal Constitution’s birthright citizenship clause. (US Const., Amend XIV, Sec. 1 [this constitutional provision provides that “all persons born or naturalized in the United State, and subject to the jurisdiction thereof, are citizens of the United States”].)
The legislation, HR 698, is currently pending in committee. However, demonstrating that there is some sanity still left in Congress (albeit minimal), an amendment to major immigration legislation (HR 4437), which would have basically had the same effect as HR 698, was rejected in the House Rules Committee last week.
There are several reasons why the idea behind this legislation is an absolutely ludicrous idea. First, it won’t become law, and the Members of Congress supporting it know that. As a result, this legislation is pure and unadulterated form over substance. It is symbolism. It is a cheap trick to appease conservatives who are irate that Congressional Republicans aren’t doing anything about gross federal spending (think “drunken sailor”). Any Member of Congress who spearheads an effort to pass a law knowing that it will never pass and does it for pure political mileage should be drummed out of Washington. Those aren’t the sort of people we need in the federal legislature.
Second, this legislation is bad policy. Almost every conservative Republican I know is opposed to illegal immigration. The real question is how to deal with it. And that is where many conservatives disagree. At the very least, immigrants seeking entry into this country should have their credentials checked to make sure we aren’t letting terrorists and other criminals into the country. Some would even go so far as to limit the number of legal immigrants that should be admitted entry. Wherever you are on the spectrum of the immigration question, however, I think it is fairly universally understood that the federal government is not doing a good job of enforcing the very laws we already have on the books.
For instance, it is a violation of federal law to enter this country without proceeding through a recognized border crossing point. And people who do so can be deported if caught. But the Feds don’t really want to ferret out these transgressors. It would cost too much money to seek out and deport illegal immigrants. . . We would have a decrease in service workers resulting in the harming of business. . . It is racially discriminatory . . . The dog ate the INS’s homework . . . The list goes on. All excuses. But the excuses do illustrate one point about enforcing current law – namely that enforcing current law involves complicated balancing of limited federal resources and divergent interest groups. So, at its most base, this legislation is simple medicine for a very complex problem. The proposal is a panacea. And it is also a smoke screen for Congress really not wanting to resolve the real issue – our porous border. And if Congress can’t enforce its current immigration laws, what good would one more do?
Third, and finally (and the reason I am really writing this lengthy post) is that this legislation is plainly and simply unconstitutional. Now, before you go blathering about how the 14th Amendment’s citizenship clause includes a consent component due to the inclusion of the phrase “subject to the jurisdiction”, let me stop you. This is one of the few things I actually know something about. As a third year law student and an executive member of the Vanderbilt Journal of Transnational Law, I actually published a lengthy (nearly 40 page) analysis of whether Congress could legislatively interpret the 14th Amendment to clarify that children born of illegal immigrants are not citizens. (33 Vand. J. Transnat’l L. 693 (2000) read it here if you have absolutely too much time on your hands.) For all sorts of reasons (which I won’t bore you with here), the answer is pretty clearly “no.” But here are a couple of the highlights.
First, and foremost, Congress has only limited power to adopt laws that themselves interpret the US Constitution. The idea is that it is up to the judiciary (and ultimately the US Supreme Court) to make those sorts of determinations. So, in a way, conservatives who bill themselves as strict constructionists or believers in separation of powers should be skeptical of Congress trying to pretend it is the Supreme Court. In similar contexts, the Supreme Court has struck down Congressional attempts to enact laws that purport to define the parameters of constitutional amendments. (Borne v. Flores, 521 U.S. 507 (1997).) And that is exactly what this legislation does. The proposal is a naked effort to define a specific phrase of the 14th Amendment (i.e., “subject to the jurisdiction”) in a manner that carves out children of illegal immigrants. Now backers of the legislation assert that birthrights citizenship is not broad enough to include children of illegal immigrants. As evidence, backers of this legislation point to congressional testimony relating to passage of the 14th Amendment and the 1866 Voting Rights Act. However, the testimony cited is far from clear in that the testimony has absolutely nothing to do with illegal immigration. Further, twisting legislative history from 1866 is hardly a good way to make one’s point.
Second, the backers of this bill misunderstand the actual meaning of this phrase. “Subject to the jurisdiction” does have a consent component to it, but it is much more limited than what the bill’s backer would have us all believe. The seminal case on this issue is an English decision from 1608, Smith v. Calvin (commonly known as Calvin’s Case). Without getting into all the hairy details of this case, which had to do with whether a Scottish citizen could bring a suit to enforce property rights in England in circumstances where the same person held the monarchy of both jurisdictions, the key point of Calvin’s Case as far as HR 698’s backers are concerned is that it established that a nation does not consent to the presence of certain persons even though the person at issue may actually be physically located in a nation’s territory. The historical examples that Calvin’s Case relied on were limited to two classes of persons (1) enemy combatants on domestic soil and (2) foreign diplomats on domestic soil. As to these two classes of people, even though their children may be born in a country, they are not deemed “subject to the country’s jurisdiction”. And supporters of HR 698 rely on this concept to conclude that Congress can legislatively prohibit children of illegal immigrants from becoming US citizens. However, for the past 400 years, these two classes of persons have been the only ones that can be carved out of birthright citizenship. And for those who still say that the consent of the federal government is required, I ask you this: Doesn’t the federal government’s slovenly enforcement of federal immigration law suggest that the government does, in fact, “consent” to the presence of these people? At the very least I would suggest that Congress has waived its right to object to the presence of illegal immigrants until it actually decides to strongly enforce the laws already on the books.
Third, and finally, all the arguments marshaled by proponents of HR 698 to support denying citizenship to a child focus on the status of the illegally present parent, not the guiltless child born in the United States by no fault of its own. As such, backers of HR 698 are foisting a penalty for the “sins of their fathers” (literally) on the child. And that is where HR 698 takes a truly fatal turn. You see, the US Constitution contains the following prohibition: “The Congress shall have the Power to declare the Punishment of Treason, but not Attainder of Treason shall work Corruption of Blood . . . .” (U.S. Const., art. III, sec. 3, cl. 2.) Indeed, this constitutional “corruption of blood” principle was cited in Justice Jackson’s dissent in the US Supreme Court decision Korematsu v. United States, 323 U.S. 214, 242 (1944), in which the majority opinion permitted the incarceration of Japanese citizens during World War II. Justice Jackson stated, “if any fundamental assumption underlies our system it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties from being visited upon him . . . .” HR 698 has the results of penalizing innocent children for the crimes of their parent. Way to go on the family values front!
So Members of Congress, here are a couple ideas from this humble blogger: Why not just enforce our current immigration laws. That would seem to be a good idea. Oh yeah, and please cut spending, it is better than pursuing Quixotic legislation that is pure symbolism and patently unconstitutional to boot.