Multi-American | How immigrants are redefining 'American' in Southern California

Why the birthright citizenship battle is heating up now

Photo by Chuck Coker/Flickr (Creative Commons)

There was a time when even in immigration restriction circles, talk of doing away with automatic U.S. citizenship for the children of undocumented immigrants was an argument that didn’t make it far beyond the fringes. So why is it now that this proposition has made it to the center of the immigration debate?

The timing of multiple new bills aimed at ending birthright citizenship isn't an accident. Two years ago, a House bill that proposed amending the Immigration and Naturalization act to limit citizenship at birth was introduced by Rep. Elton Gallegy, a Simi Valley Republican who now leads the House immigration subcommittee. The bill died quietly, attracting only one co-sponsor.

But by late last summer, shortly after the furor died down surrounding Arizona's SB 1070 as the stringent anti-illegal immigration bill headed to federal court, talk of ending birthright citizenship resumed anew. Plans emerged either to amend the 14th Amendment of the U.S. Constitution, which grants citizenship to those born on U.S. soil, or to seek a judicial reinterpretation.

The Arizona Republic reported then:

There are two emerging tracks to challenging the longstanding tenet that almost any baby born on U.S. soil is an automatic citizen. One is a traditional constitutional amendment asserting that one or both parents must be U.S. citizens or at least lawful permanent residents for a baby to qualify for citizenship. The other would be to pass federal or state legislation that could provoke a court battle over the amendment's citizenship clause.

In just the last month, a slew of anti-birthright citizenship measures have been introduced. They include:

What gives?

"The level of interest in illegal immigration is probably higher than I've ever seen it," said John Eastman, former dean and a professor at Chapman University School of Law who has worked with the legislators pushing state bills. "There is just this critical mass of public concern hitting the public stage in a way it hasn't in a long time."

That's far from all of it. The factors behind the timing of the birthright citizenship battle range from the legacy of SB 1070 to the political climate that traditionally surrounds a period of economic crisis, when foreigners - and in this case, their second-generation children - are less welcome than at other times. There's also the fact that Republicans, so far the only ones promoting these measures, have more control of state legislatures than they have in decades.

Behind some of the new legislation is a well-orchestrated coalition of lawmakers, legal advisors and advocates. Among the counsel that assisted the state legislators with the model birthright citizenship bill is attorney and now-Kansas secretary of state Kris Kobach, the legal brains behind SB 1070. The bill was written to follow a similar legal trajectory, intended to land states that approve it in court and forcing a Supreme Court review of the 14th Amendment.

The bill was unveiled by Metcalfe's group, State Legislators for Legal Immigration, a nationwide coalition of like-minded lawmakers which the Southern Poverty Law Center recently described as working closely with the controversial Federation for American Immigration Reform (FAIR, a national immigration restriction group that the SPLC designates as a hate group). Altogether, there is a level of organizing, particularly at the state level, that hadn't surrounded the birthright citizenship issue before.

It's the unorthodox state-to-court approach that draws most from the experience of SB 1070, partially implemented in Arizona at the end of July. That measure, which among other things would allow local police to check for immigration status, was partly blocked by a federal judge and is now winding its way toward the Supreme Court. While Arizona was not the first state to pass similarly stringent legislation, the attention the law received, its subsequent legal path and the bills it has inspired since have been closely watched by lawmakers in other states.

“The success that Arizona had at the state level and the light that has been shined on their efforts…that does create momentum, that does encourage state legislators who think ‘Hey, if Arizona can do it,’” Metcalfe said. “We’re seeing momentum build, and that is why we announced the legislation on the day that congress was swearing in, at the beginning of January, to send a message together, with Congress in town that day.”

According to Metcalfe, legislators in at least two other states are considering filing versions of the model legislation soon, and others in around 18 states have expressed interest.

Mike Phillipsen, a spokesman for Arizona state Sen. Ron Gould, the sponsor of the two state Senate bills, said that the current team approach is one of the lessons learned from SB 1070.

“There is a real connection with 1070 in that it was kind of Arizona out there on its own with 1070. If there are going to be court fights around the country, then we can get legislation drawn up consistently in all the states, and we are all in this together, working as a team,” Phillipsen said.

Aside from an obvious outside factor, the economy, which makes enforcement-based immigration measures politically appealing, the timing of the anti-birthright citizenship push is also affected by who is in power, said Louis DeSipio, a professor of political science and Chicano studies at UC Irvine. Republicans have their highest share of state legislative seats since 1928, he said.

"Republicans, who will generally be more reponsive to state legislation about birthright citizenship, control 54 out of 99 state legislative houses," DeSipio said. “So, birthright citizenship legislation will mobilize the base and likely pass in some states. That, of course is just part of battle.”

Any effort to challenge birthright citizenship would immediately wind up in federal court, he said, and if the Supreme Court were to take it on, it could be years before these cases got there, possibly in a different political environment.

The proposals may not go even that far. The Arizona Capitol Times reported Friday that in spite of the noise, many state senators don't see birthright citizenship bills as a priority:

In fact, a document that outlines Senate Republicans’ focus this year is unlikely to include the birthright-citizenship legislation, said a top Republican in charge of preparing the agenda.

“At this point, it doesn’t look like there is enough support among the caucus members to include it in the majority plan,” Senate Majority Leader Scott Bundgaard said.

Chances of the legislation moving very far in Congress remain slim also, said Wayne Cornelius, director emeritus of the Center for Comparative Immigration Studies at UC San Diego. However, the political climate does make the timing good for proponents seeking points from constituents, he said, at least in the short term.

"Since there will be no comprehensive immigration reform legislation introduced in Congress this year nor next, attacking birthplace citizenship is the anti-immigration forces' best shot for scoring symbolic points,” Cornelius said.

The United States is one of several countries that grant citizenship to those born on national soil; however, several other countries, including many European states, only grant citizenship to children born to a citizen of that country.

The last time the Supreme Court ruled on birthright citizenship and the 14th Amendment was in 1898, when the court decided that a young Chinese American man born in San Francisco – and who was denied readmission to the United States after traveling abroad – was indeed a U.S. citizen.