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The end of birthright citizenship: Could it happen here?

Photo by Victoria Bernal/Flickr (Creative Commons)

In September, a report from the Migration Policy Institute took a shot at predicting what the unauthorized population of the United States might look like in 2050 if birthright citizenship were repealed.

It estimated that depending on the rules established, the total unauthorized population - now estimated at around 11 million - would grow over the next four decades to anywhere between 16 million and 24 million. Not because more people would necessarily be entering illegally, but because these immigrants would be having U.S. born second-generation undocumented children. And because these children, without legal status, would eventually have third-generation undocumented children of their own.

Even if all new illegal immigration into the United States were to stop, the report concluded, the biggest drop in the unauthorized population would occur among foreign-born immigrants, with slower but still-steady growth of an undocumented second and possibly future generations.

It's a scenario that any number of policies could modify, but it begs the question: Could there really be an end to birthright citizenship in the United States? Other nations have changed their citizenship policies, but could it happen here?

The legal experts tapped by proponents of anti-birthright citizenship bills say that doing away with automatic citizenship at birth to children of undocumented immigrant is legally feasible in this country. Others believe the proposals don't stand much of a chance, in large part because repealing birthright citizenship would require amending or reinterpreting the U.S. Constitution, and this is not done easily or lightly.

Proposals introduced in the last month have included a federal House bill seeking an amendment to immigration law, a Senate resolution for a constitutional amendment, and state bills intended to force the Supreme Court to review the 14th Amendment. The popular argument among proponents of these measures is that Section 1 of the amendment is incorrectly interpreted. Here's how it reads:

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's the phrase "subject to the jurisdiction" that is up for grabs, at least as far as anti-birthright citizenship advocates are concerned. It's what the proposed House amendment seeks to redefine in federal immigration law, and what the state bills' proponents hope to see redefined in the Constitution.

One who believes that a reinterpretation of the phrase could prevail is John Eastman, a Chapman University School of Law professor and former dean who has worked closely with a coalition of state legislators opposed to birthright citizenship. He and Kris Kobach, an attorney and activist who recently became Kansas secretary of state, worked together to draft the model bill that has served as a prototype for the state bills recently filed in Arizona and elsewhere.

Here's what Eastman wrote in a 2006 legal paper for the conservative Heritage Foundation:

The widely held, though erroneous, view today is that any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre- tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil.

Eastman, who lost a primary bid for California attorney general last year, points to language in the 1866 Civil Rights Act that reads “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." This, he argues, means that foreigners who are temporarily in the United States are subjects of a foreign power and not subject to U.S. jurisdiction, an argument he believes would hold up in court.

"If I am wrong about what the 14th Amendment means, which is what the court actions would test, then the only way to do it (to end birthright citizenship) would be by constitutional amendment," Eastman said in an interview. "If I am right about what the 14th Amendment means, then simply clarifying that, that 'subject to the jurisdiction' means allegiance-owing and not territorial, would accomplish the end goal here without having to have a constitutional amendment."

Not so fast, other legal experts say. Adam Winkler, a professor and constitutional law expert at the UCLA School of Law, notes that for example, foreign nationals are as subject to legal jurisdiction on U.S. soil as anyone else, regardless of national allegiance.

"All aliens on our shores, with the exception of diplomats, are subject to the jurisdiction of the states in which they reside," Winkler wrote in an e-mail. "The state can arrest them for criminal activity. The state can require them to pay taxes. The state can haul them into court by subpoena to defend against a civil suit. This contrasts with diplomats, over whom the state does not exercise jurisdiction. In fact, non-diplomat aliens are subject to the exact same jurisdiction of the states as citizens; aliens just have fewer of the benefits, like an ability to vote and to stay here permanently."

Any state laws approved based on anti-birthright citizenship bills could well land in court, Winkler wrote, "yet the courts traditionally defer to the federal government on immigration matters, and this attempt to create a permanent underclass of undocumented residents is contrary to current federal policy. The courts are likely to see the birthright citizenship laws as just another example of states trying to hijack immigration law because they don't like how the federal government is applying it."

Kevin Johnson, dean of the UC Davis School of Law and a professor of public interest law and Chicana/o studies, recently told Fox News Latino that a constitutional amendment, as proposed in the recently-filed Senate resolution, stands little chance of succeeding. Constitutional amendments must be ratified by the states following Congressional approval, a lengthy and complex process. In the story he noted that the last proposed amendment, the Equal Rights Amendment, was never ratified. It was approved by Congress in 1972 but still not ratified by the deadline 10 years later.

In a phone interview this week, Johnson said that one potential silver lining of whatever court battles may come from the state bills might be clarification as to where states can and can't tread regarding immigration. Still, he sees little possibility of the Supreme Court reinterpreting the Constitution.

"It's hard to imagine much happening with respect to birthright citizenship," Johnson said. "But at the same time, this kind of constant agitation has gotten people worked up, and it will continue to get people worked up. It's unfortunate, because it makes it difficult to have a reasoned discussion about what we need to do to reform what many people believe to be a broken immigration system."