Christine Flowers: Born in the U.S.A.
Andrea Ferreira via Flickr
There have been some interesting discussions about birthright citizenship, and Trump’s election a few weeks ago has just intensified the interest in the topic. A number of people who are angry at the chaos at the border have jumped right over the normal processes and procedures which would guarantee that illegal border crossings are limited, and hit right at one of the core principles of our nation, one embedded in the Fourteenth Amendment: if you are born here, regardless of the status of your parents, you are a U.S. citizen. The actual wording of the amendment is as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Those who don’t like the idea that birth on American territory automatically grants you the gift of American citizenship have started to parse the words of the Amendment. They are doing what gun reform activists tried to do with the Second Amendment, making the “right to bear arms” a collective right held by “militias,” not an individual and a personal right for each and every American citizen. That parsing, which would make every Catholic school English teacher proud, was roundly rejected by the Supreme Court in the Heller decision, when the court recognized an individual right to own a gun. That being the case, conservative attempts to dismantle well over a century of constitutional precedent is dishonest and untenable.
Some of them argue that the phrase “subject to the jurisdiction of” means that the parents of the child born in this country must be legally here in order to confer citizenship. The point that they are missing, or actually one of several points, is that it is not the parents who are conveying anything but life to the child. It is the Constitution itself that is conveying citizenship.
More importantly, though, virtually everyone physically present in the U.S. regardless of legal status is subject to the jurisdiction of our government. If this were not the case, we can imagine a Batman-style Gotham City environment, where illegal aliens could just commit crimes and the only thing we could do if we catch them is deport them. No arrests, no jail terms, no trials, and no life sentences. Imagine if that were the case with Laken Riley’s murderer and the illegal alien who is now going to spend the rest of his life behind bars. This writer would have been happier had he been sentenced to death, but that’s another column altogether.
The idea that we can simply strip people of their citizenship and thereby erase a constitutional right, merely to solve a problematic but temporary problem at the border, is anathema.
I know that legal scholars have differed on the integrity of birthright citizenship, but they are going to need better arguments than proffered by anti-immigration activists in order to be able to convince even this conservative Supreme Court of their legitimacy.
It is true that I am an immigration lawyer and my bias is incorporated into my viewpoint. Thirty years of doing this work will color anyone’s perspective on the laws governing immigration policy. I understand extremely well the importance of maintaining order at the border, but stripping people born here of their birthright, one over a century old in its recognition, on specious political grounds, is not going to advance that goal.
People do not come here to “have” U.S. citizen children, who frankly can only be of benefit from an immigration perspective after the child turns 21 or in a few other very limited circumstances. The immigration laws already eliminate U.S. citizen children as the basis of most waivers of inadmissibility and against deportation/removal, so this is simply an appeal to the lowest common denominator, the basest instincts of the xenophobic.
And where will we draw the line? Is being born to a citizen the only way to ensure the citizenship of the child? Is being born to a visitor who has the right to live here for a few months enough? Do you need your green card? And is this what we want, a world where your value is based on your parents’ status in the country? I don’t think that Americans are that sort of people.
So even if you do support Trump’s more draconian policies on immigration, you are not as patriotic as you think if you are in favor of making a newborn a criminal in his crib.
Christine Flowers is an attorney and lifelong Philadelphian. @flowerlady61
Congratulations Miss Flowers. After more than a decade of pushing a conservative agenda your wish came true and Trump got elected for a second term. You knew he would do this and Americans would support it. You can no longer say things like this don’t happen in America, because now they will and media commentators like you made this possible.
One can disagree with the “birthright” argument without supporting some of Trump’s positions. The draconian consequences that some fear as a result of rejecting the “birthright” argument can be remedied by Congress.
You mean the same Congress that has held up military promotions over unrelated matters, putting national security at risk. The same Congress that refused to pass a bill that both parties agreed on that would have increased funding to border security. The same Congress that will do everything Trump wants because he drove out all of the moderates.
I mean the Congress to which the Constitution has given the power to legislate.
Does that power to legislate include with\holding hundreds of military promotions for reasons that have nothing to do with why that person is being promoted?
Deportation is explicitly authorized in federal statute and is a legitimate, necessary tool of immigration enforcement.
We can see how perverse the immigration debate has become that it became the norm to allow millions of people to defy our laws, and it is seen as ‘draconian policies on immigration” if an incoming US president vows to get serious about enforcing those same laws.
If mass deportation is a hateful notion for those suffering from Trump Derangement Symptom, the Biden administration shouldn’t have allowed a mass illegal influx. The Center for Immigration Studies has shown that 316,000 aliens were removed or returned in fiscal year 2014 under President Barack Obama before collapsing to 28,000 in fiscal year 2022 under President Biden.
Trump’s choice as border czar, Tom Homan, says his first priority will be removing criminal aliens and national security threats.
This is what Trump did the first time around — the majority of arrests in the first administration were of aliens with criminal records or pending charges.
The next logical priority would be to target the 1.3 million aliens who have already been ordered deported but are still in the country. So, give it a break with the manufactured drama about “draconian policies.”
I only want to observe that: pregnant women do come to America illegally just so their child may be a citizen and, it is thought, a better future than possible in the home country. Having said that, consider that the mother becomes a de facto citizen as otherwise she could be deported and forever separated from her child which few would argue is a course to take. There is no good solution to this conundrum, except possibly, return them to their home country before term. Now my favourite rant: The Biden administration purposely allowed uncontrolled, unchecked migration into the country, the reasons why are subject to speculation, some think for a pliable voter base for the future as Democrats, others for cheap nannies and gardeners for upper class elites and some so that corporate America has a pliable workforce. I don’t know except the farm workers union members are taking it in the shorts for uncontrolled immigration.
I think people are tired of the resources given to anchor babies. Perhaps require the parent-applicant to have a social security number or some other showing of legal residence here to apply for welfare benefits?