Not all born here are born citizens

The 14th Amendment allows for limits.

Posted: August 24, 2010

One of every 12 babies born in the United States has at least one parent who is in the country illegally, according to the Pew Hispanic Center. The Washington Post and others have reported on widespread "birthright tourism," in which pregnant tourists come to the United States to give birth.

The current interpretation of the 14th Amendment allows all such children, whether born to illegal aliens or temporary tourists, automatic U.S. citizenship. Elected officials have begun to question whether that interpretation is correct and whether it could be changed.

What the 14th Amendment says is: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. ..." The 14th Amendment does not say - or mean - that everyone born here is a citizen.

There are, in fact, many examples of people born in the United States who are not automatically citizens under the 14th Amendment. In every such case, the denial of birthright citizenship is based on the parents' status.

For example, even if they're born in U.S. hospitals, the children of foreign diplomats are not considered citizens of the United States because they are not "subject to the jurisdiction thereof."

Children born on U.S. soil to alien enemies during a hostile occupation are not citizens for the same reason. For example, the Japanese military occupied two of Alaska's Aleutian Islands during World War II. A Japanese child born there at the time would not have been a U.S. citizen.

Children born in the United States to Russian spies recently returned to Russia with their parents in a prisoner exchange. Are those children entitled to return to the United States as citizens after graduating from Russian spy school? Or should they, too, be regarded as having been born to alien enemies in hostile occupation?

For many years after the adoption of the 14th Amendment, children born to sovereign American Indian tribes were not considered U.S. citizens because of their allegiance to the tribes. That exception was eventually overturned by federal legislation - which suggests that Congress has a role in the interpretation and application of the 14th Amendment.

If Congress has the power to determine who is and is not subject to the jurisdiction of the United States under the 14th Amendment, what should it do? Should it legislate that children born to illegal aliens are not in fact subject to that jurisdiction? Or that children of temporary tourists are not born U.S. citizens for the same reason?

The answers depend on whether we want to encourage or discourage various categories of noncitizens who might enter the country.

The United States has the most generous policies on legal immigration in the world. We give out more green cards granting legal permanent residence to foreign nationals - typically around a million a year - than the rest of the world's nations combined. It has always been our policy to encourage the assimilation and naturalization of legal immigrants, and clearly their American-born children should enjoy birthright citizenship.

But what about those who enter the country legally on tourist visas but have no ties or loyalty to the United States? We want to encourage tourism, and most birthright tourists are in fact fairly affluent. But do we want to encourage people raised in foreign countries by foreign parents to enter the United States as citizens because their parents were birthright tourists? If not, Congress could limit this phenomenon by making tourist visas unavailable to pregnant foreigners who intend to give birth here.

When he taught at Temple, the economist Walter Williams said, "The poor people of the world may be poor, but they are not stupid. They are as capable as anyone in this room of doing multifunctional cost-benefit analysis to determine what is in their own self-interest."

So if we want to encourage more of those considering illegal immigration to the United States, all we have to do is lower the costs and increase the benefits. Conversely, if we want to discourage them, we have to increase the costs and decrease the benefits. So we cannot expect illegal immigration to diminish if we lower the costs through nonenforcement and increase the benefits through amnesty or a liberal interpretation of the 14th Amendment.

Discussion of the real and complex legal issues surrounding the 14th Amendment should be encouraged, not arbitrarily cut off. Ultimately, we and our elected representatives must decide whether we want to open the borders or enforce the numerical limits on immigration that Congress has adopted. Pretending we have numerical limits but not enforcing them is not a viable policy.


Jan C. Ting is a professor at Temple University's Beasley School of Law and a former assistant commissioner of the U.S. Immigration and Naturalization Service. He can be reached at janting@temple.edu.

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