Fighting Birthright Citizenship: Will GOP Congressional Leadership Hide Behind The States (Again)?

In the last few weeks, legislation against birthright citizenship was introduced in both the US House, Senate, and in dozens of state legislatures. Though it is still a little early to tell, there is reason to be concerned that much of the Establishment Republicans' talk about the issue was, well, talk. This might leave the states left to pull the slack once again.

On January 25, Senators David Vitter (R-LA) and freshman Rand Paul (R-KY) introduced a joint resolution stating proposing an amendment to the US Constitution which would state:

"`A person born in the United States shall not be a citizen of the United States unless--

` (1) one parent of the person is a citizen of the United States;

` (2) One parent of the person is an alien lawfully admitted for permanent residence in the United States who resides in the United States;

`(3) one parent of the person is an alien performing active service in the Armed Forces of the United States; or

` (4) The person is naturalized in accordance with the laws of the United States.'." [S.J. Res 2]

Thus far there is not a single co-sponsor to the bill. This is particularly interesting given that John McCain (R-AZ), Lindsey Graham (R-SC), Jeff Sessions (R-AL) Minority Leader Mitch McConnell (R-KY), John Kyl (R-AZ), and John Cornyn (R-TX) among others all expressed interest in ending birthright citizenship last year.

While some such as McConnell and McCain merely stated "we should hold hearings" on the issue, Graham explicitly said "We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen." [Graham eyes 'birthright citizenship', by Andy Barr, Politico.com, July 29, 2010]

Why isn't he a co-sponsor? Perhaps now that that his boss John McCain sees no need to pose tough on immigration, he has dropped the issue.

But even if a few more Republicans decided to co-sponsor the Amendment, it is nearly impossible to pass. A constitutional amendment would need 67 Senators, 290 Congressman, and then be independently ratified by 38 state legislatures.

Upon introducing the Amendment, Vitter's office sent out a press release stating that "Vitter and Paul do not believe that the 14th Amendment confers birthright citizenship to the children of illegal aliens, either by its language or intent."

If that's true, why go through such a spectacularly difficult process? As VDARE.com has noted time and time again, neither Congress nor the Supreme Court has ever deemed that the 14th grants automatic birthright citizenship for the children of illegal aliens.

When Lindsey Graham and company began to throw around the idea of an amendment, I speculated that they simply wanted to throw a symbolic bone to the grassroots that they knew would never pass—a la the Human Life or Federal Marriage Amendments.  

However, Vitter has a proven track record fighting illegal immigration, and in fact introduced the same Amendment with no co-sponsors or fanfare long before the Republican Establishment jumped aboard.

While Paul and Vitter are making a valuable statement, the effort in the House of Representatives led by Steve King with his Birthright Citizenship Act of 2011 seems to me to be a potentially effective strategy too.

Rep. King's bill makes the same people eligible for citizenship as with the Amendment, but it does so by amending the Immigration and Nationality Act to acknowledge "the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered `subject to the jurisdiction' of the United States for purposes of subsection (a)(1) if the person is born in the United States" to legal permanent residents, US Citizens, or  members of the military. [H.R. 140]

Thus far, King's Amendment has only 45 co-sponsors.  But many of the freshman Republicans have not even hired their full staffs and it is a fair guess that within a couple of months the number of co-sponsors will be around 100. NumbersUSA counts over two dozen freshmen who pledged they would oppose anchor babies, but have not co-sponsored the legislation.

So we should give the freshman a few weeks. But the more senior members do not have such an excuse. And no one in the leadership is on board, including Speaker John Boehner (R-OH), Majority Leader Eric Cantor (R-VA), and majority whip Kevin McCarthy (R-CA.) More notably, Judiciary Chairman Lamar Smith (R-TX), and Immigration Subcommittee Chairman Elton Gallegly (R-CA) are not signed on. As I mentioned in a recent piece, King was passed over by Gallegly for immigration chair, and would have pushed birthright citizenship to the forefront.

It is also worth noting that none of the Conservative Movement darlings, such as Michele Bachmann (R-MN, who co-sponsored it in the past), Mike Pence (R-IN), and Paul Ryan (R-WI), have signed on either.

With the Giffords shooting delaying everything by a week, and then the Obamacare repeal taking another week, it's still possible that a few more prominent Republicans will join King.

But, once again, Congress' behavior seems like to leave it up to the states to lead the battle against illegal immigration. In the past few years, a few legislators have introduced a bill on birthright citizenship, but it was not taken seriously until SB 1070 Author Russell Pearce said he would move on the issue. Pearce and other state legislators worked with Kris Kobach to create model legislation that is now being introduced across the country.

The legislation defines state citizenship as "the person is born in the United States and subject to the jurisdiction thereof, and" and that "the person is a resident of the state." It then properly defines the "jurisdiction thereof" as

"meaning that it bears in Section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this statute, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country."

Despite the hysteria that is greeting these proposals, these bills do not actually redefine citizenship rules for their state. In fact, changing the rules for state citizenship is largely symbolic because it explicitly "shall not confer upon the holder thereof any right, privilege, immunity, or benefit under law."

So what's the point of these laws? They are accompanied by a compact to issue separate birth certificates for those born to the children of US Citizens and of illegal aliens, which will not "take effect until Congress has given its consent, pursuant to Article I, Section 10, Clause 3 of the United States Constitution." [Arizona SB 1308 (pdf)]

What the compact and the bills will do is force both Congress and Courts to act on the issue.

Versions of the bill have been introduced in Georgia, Pennsylvania, South Carolina, South Dakota, Indiana, Oklahoma, and Texas.

However, it is most likely to pass in Arizona. Conservatives won large majorities in the State House and Senate running on SB 1070 and Governor Jan Brewer saved her political career by doing the same. 

However, especially after the Giffords shootings were used to slander the state as being filled with right wing extremists, there are some signs of fatigue.

Arizona State Senator John McComish (R-Phoenix) who voted for SB 1070 said he has not committed to voting on birthright citizenship because, "I'm concerned with the energy and resources it will take if we go forward on this. It is time for another state to step forward."[Birthright citizenship fight begins in Arizona | Bills would strip citizenship from illegal migrants' babies, By Alia Beard Rau, The Arizona Republic, January 28, 2011]

His motives notwithstanding, there are many Arizonans who support SB 1070 and would support ending birthright citizenship who simply want to avoid being the center of national controversy.

This is why it is so important that other states besides Arizona keep pushing the issue. Even if they don't pass it, simply keeping it in the headlines takes some of the pressure off Arizona.

As I have said before, whatever hiccups immigration patriots encounter, the fact that this issue is being discussed at all is a huge improvement over just a year ago.

The more this issue is in the headlines, the more Americans learn about the costs and consequences of anchor babies, and the more pressure there is for the politicians to finally do something about it.

"Washington Watcher" [email him] is an anonymous source Inside The Beltway.