June 17, 2010

Anchors Away

Borrowing a line from the ‘70s hit movie “Network,” the people of Arizona are apparently “mad as hell and [they’re] not going to take it anymore,” as far as illegal immigration is concerned. On the heels of Arizona’s controversial immigration law is proposed legislation from Arizona state senator Russell Pearce that would block the children of illegal immigrants – so-called “anchor babies” – from becoming citizens, even though born in the United States. Explaining his rationale, Pearce stated, “This is an orchestrated effort by [illegal immigrants] to come here and have children to gain access to the great welfare state we’ve created.”

At issue is not the fact that “anchor babies” could potentially provide a long-term path for citizenship to their illegal-immigrant parents, but rather this: If these children are indeed U.S. citizens by birth (i.e., entitled to so-called “birthright” citizenship), what then happens to them? What happens to their parents? The problem supposedly pits law against compassion. The prevailing wisdom is that allowing the illegal-immigrant parent to remain in the U.S. with their child averts a greater injustice: permitting the “citizen” child to stay in the U.S. while deporting the parent, or else deporting them both – effectively “deporting” a U.S. citizen. Thus, the problem hinges on the child’s citizenship status.

Accordingly, opponents of Pearce’s proposal point out that the 14th Amendment to the Constitution grants citizenship to anyone born in the United States. The plain language of the amendment itself, however, states that in addition to being born or naturalized in the United States, those seeking citizenship must be subject to U.S. jurisdiction. Case law and context surrounding the drafting of the 14th Amendment clearly reveal that “jurisdiction” does not mean simply being subject to U.S. laws and courts; rather, it means exclusive allegiance to the United States. Hence, American Indians were not considered U.S. citizens even after passage of the 14th Amendment, because their allegiance vested in their tribes, not the U.S. This concept is discussed at length in the landmark case of Elk v. Wilkins (1884). In like manner, so the argument goes, children of illegal immigrants – who obviously don’t meet the above definition – cannot reasonably be considered “citizens,” because their allegiance is tied to that of their parents.

The real problem with “anchor babies” is that the child is made a pawn of a scheme to circumvent existing immigration laws by “anchoring” the illegal-immigrant parent in the U.S. on the basis of their child’s citizenship. Thus, the problem is twofold. First, we simply must enforce existing immigration laws. We are either a nation of laws or we are not, and if we are not, then we have lost one of the keystones that set America apart from virtually every other nation on earth. As Arizona Gov. Jan Brewer notes, “We are a nation of laws. That is why we are American. And there are consequences, unfortunately.”

Second, real immigration reform is needed to allow productive, law-abiding immigrants a viable path to resident alien or citizen status. That path currently doesn’t exist for many because of immigration laws biased against targeted countries, particularly Mexico. Of course, anti-immigrant sentiment – largely produced from current failures to enforce existing immigration laws at the federal level – has produced a host of unintended consequences exacerbating the basic problem.

However, one good start on the road to reform is closing the “anchor baby” citizenship loophole, thus removing a strong incentive to immigrate illegally. Congress can and should do this. As evidenced by Congress’ offer of citizenship to numerous Indian tribes beginning in 1870, Section 5 of the 14th Amendment provides Congress the power to define who is properly within the jurisdiction of the United States … and who is not.

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