How the Wong Kim Ark case applies to debates about jus soli

This was in the Post-Dispatch on Thursday, Jan. 6, 2011. Note the bnold-faced information, which reflects our recent class discussion.

WASHINGTON • Conservative lawmakers from five state legislatures launched a joint campaign Wednesday afternoon to try to cancel automatic U.S. citizenship for the American-born children of illegal immigrants.

It is part of the conservative Republicans’ promised attack on “anchor babies” that included U.S. Rep. Steve King, R-Iowa, marking his first day Wednesday night as chairman of the House Judiciary subcommittee on immigration by introducing a bill to eliminate birthright citizenship for children of illegal immigrants. “This isn’t what our Founding Fathers intended,” he told politico.com.

The state legislators used a news conference in Washington to unveil two model measures they said would be introduced in at least 14 states. One was a bill clarifying the terms of citizenship in those states to exclude babies born in the United States of illegal immigrant parents. The second was a compact among states to adopt common positions on the issue.

The lawmakers acknowledged that the state bills were not likely to have a practical impact anytime soon because they would be quickly challenged as unconstitutional. But the legislators — from Arizona, Georgia, Oklahoma, Pennsylvania and South Carolina — said they chose the inaugural day of a new, Republican-controlled House of Representatives to open the first round of litigation they hope will lead to the Supreme Court and also spur action by lawmakers in Washington.

“We are here to send a very public message to Congress,” said Daryl Metcalfe, a Republican state representative from Pennsylvania. “We want to bring an end to the illegal alien invasion that is having such a negative impact on our states.”

The state lawmakers’ initiative put the highly emotional issue of birthright citizenship, which had long been marginal in the immigration debate, at the front of the Republicans’ immigration agenda as the new Congress gets under way. A study released in August by the Pew Hispanic Center found that about 340,000 children were born to illegal immigrants in the United States in 2008 and became instant citizens.

The right to U.S. citizenship for everyone born on American soil is described in the 14th Amendment to the Constitution. The state legislators argued that certain phrases in the amendment signal that it was not intended to apply to children of immigrants who do not have lawful status.

Opponents of changing the status quo argue that determining American citizenship is clearly a federal matter in which states have no legal role.

Because the federal government decides who is to be deemed a citizen, the state lawmakers are considering instead a move to create two kinds of birth certificates in their states, one for the children of citizens and another for the children of illegal immigrants. The theory is that this could spark a flurry of lawsuits that might resolve the legal conflict in their favor.

Most scholars of the Constitution consider the states’ effort to restrict birth certificates patently unconstitutional.

“This is political theater, not a serious effort to create a legal test,” said Gabriel J. Chin, a law professor at the University of Arizona whose grandfather immigrated to the United States from China at a time when ethnic Chinese were excluded from the country. He called the effort “unconstitutional.”

But conservatives contend that the issue is unsettled. Kris Kobach, the incoming secretary of state in Kansas and a law professor at the University of Missouri-Kansas City who has helped draft many of the tough immigration regulations across the country, argued that the approach the states were planning would hold up to scrutiny.

“I can’t really say much more without showing my hand,” Kobach said. “But, yes, I am confident that the law will stand up in court.”

The 14th Amendment, adopted in 1868, was a repudiation of the Supreme Court’s 1857 ruling, in Dred Scott v. Sandford, that people of African descent could never be American citizens. The amendment said citizenship applied to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

In 1898, the Supreme Court, in United States v. Wong Kim Ark, interpreted the citizenship provision as applying to a child born in the United States to a Chinese immigrant couple.

In April, U.S. Rep. Duncan Hunter, R-Calif., one of those pushing for congressional action on the issue, stirred controversy when he suggested that children born in the United States to illegal immigrants should be deported with their parents until the birthright citizenship policy was changed.

“And we’re not being mean,” Hunter told a Tea Party rally in Southern California. “We’re just saying it takes more than walking across the border to become an American citizen.”

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