By SCOTT WONG | 8/9/10 8:28 PM EDT
The push by congressional Republicans to deny automatic citizenship to the children of illegal immigrants has opened up a split in the GOP, with several former Bush administration officials warning that the party could lose its claim to one of its proudest legacies: the 14th Amendment.
For Sen. Lindsey Graham (R-S.C) and other conservatives, the solution to what they regard as one of the greatest flaws of U.S. immigration policy is obvious: Amend the amendment, which grants citizenship to anyone born on American soil regardless of whether their parents are legal residents.
But in recent days, former aides to bothVice President Dick Cheney and President George W. Bush, who pushed for comprehensive immigration reform, have condemned the calls by top Republicans to end birthright citizenship.
Cesar Conda, who served as domestic policy adviser to Cheney, has called such proposals “offensive.” Mark McKinnon, who served as media adviser in Bush’s two presidential campaigns, said Republicans risk losing their “rightful claim” to the 14th Amendment if they continue to “demagogue” the issue.
“The 14th Amendment is a great legacy of the Republican party. It is a shame and an embarrassment that the GOP now wants to amend it for starkly political reasons,” McKinnon told POLITICO. “Initially Republicans rallied around the amendment to welcome more citizens to this country. Now it is being used to drive people away.”
Enacted during Reconstruction by a Republican Congress, the 14th Amendment officially overruled the Supreme Court’s infamous Dred Scott decision and defined citizenship not only for newly enfranchised blacks but for all Americans.
For more than a century, it’s been interpreted by the courts to include children whose parents are not U.S. citizens, including illegal immigrants.
“That is the wisdom of the authors of the 14th Amendment: They essentially wanted to take this very difficult issue — citizenship — outside of the political realm,” Washington Post columnist Michael Gerson, a former Bush speechwriter, said Sunday on ABC’s “This Week.” “They wanted to take an objective standard, birth, instead of a subjective standard, which is the majorities at the time. I think that’s a much better way to deal with an issue like this.”
But for a growing number of Republicans who believe the children of illegal immigrants should be denied birthright citizenship, the 14th Amendment needs to be fixed.
Graham has become their somewhat unlikely spokesman. In recent months he has faced increasing anger at home from members of his own party who have derided his support for President Barack Obama’s two Supreme Court picks, the bailout for financial institutions, and comprehensive immigration reform, including a path to citizenship for the 11 million illegal immigrants already in the country.
A Greenville County Republican committee voted last week to bar the two-term senator from future meetings and events, censuring him “for his cooperation and support of President Obama and the Democratic Party’s liberal agenda.”
But Graham, who isn’t up for re-election until 2014, recently scored points with conservatives after saying he may introduce a constitutional amendment to restrict the long-standing policy of birthright citizenship. Top Republicans, including Minority Leader Mitch McConnell (R-Ky.) and Minority Whip Jon Kyl (R-Ariz.), have joined in by calling for congressional hearings to explore the matter.
Graham’s proposal takes aim at two sets of people: children who are born in the U.S. to illegal immigrants and those born to “birth tourists,” foreigners who obtain 90-day tourist visas for the express purpose of giving birth in the U.S. so their children can become citizens.
His comments have angered immigrant rights groups that previously viewed him as an important GOP ally.
Mary Giovagnoli, director of the Immigration Policy Center, said the timing of his announcement and his harsh choice of words – “They come here to drop a child. It’s called drop and leave” -- indicated Graham was simply trying to rile up his conservative base in the midst of the red-hot immigration debate.
Giovagnoli, whose group backs comprehensive immigration reform, said “it really is a politically manufactured issue.”
Graham said he began thinking about birth citizenship after a woman asked him at a recent town hall meeting why children of illegal immigrants were citizens. He couldn’t give her a good answer, he said, and decided to check into it.
“I’m looking at how you can change the law to create the right incentives,” Graham told POLITICO last week. “Right now, the incentives are for people to come illegally to have children or just be tourists and have children for the very purpose of gaining citizenship.”
House Minority Leader John Boehner (R-Ohio) said Sunday said that altering the 14th Amendment is “worth considering” and that the debate should continue.
“There is a problem. To provide the incentive for illegal immigrants to come here so their children can become U.S. citizens does in fact draw more people to our country,” Boehner said during an appearance on NBC’s “Meet the Press.”
“In certain parts of our country, clearly our schools our hospitals are being overrun by illegal immigrants, a lot of whom came here just so their children could become U.S. citizens,” he added. “They should do it the legal way.”
Most constitutional scholars agree there’s little chance an amendment will succeed.
The last time it was done -- without dispute -- was nearly 40 years ago when the national voting age was changed to 18. The 27th Amendment, setting rules for congressional salaries, was ratified in 1992 but that amendment was first introduced in 1789, more than 200 years earlier.
To propose a change requires support from two-thirds of both the House and Senate; two-thirds of state legislatures also can call a constitutional convention to discuss an amendment. Approval from three-fourths of state legislatures, or at least 38 states, is needed to ratify the amendment.
“Good luck with that,” Bill Ong Hing, a professor at the University of San Francisco School of Law, told reporters in a conference call. “It can’t be a serious proposal on the part of those who are talking about it. Politically, it can’t be done and it’s a distraction from seeking true immigration reform.”
But some lawmakers believe there’s an easier way: changing the statute.
The citizenship clause of the 14th Amendment states: “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.”
That’s been interpreted to include the offspring of illegal immigrants. But some Republicans have argued that illegal aliens are not “subject to the jurisdiction thereof” and that their kids should not receive automatic citizenship.
“When it was enacted in 1868, there were no illegal immigrants in the United States because there were no immigration laws until 1875. So drafters of the Amendment could not have intended to benefit those in our country illegally,” Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, wrote in POLITICO’s Arena.
Smith and 93 other Republicans have co-sponsored legislation that would limit citizenship to children born in the U.S. with at least one parent who is a naturalized citizen, legal permanent resident or serving in the military.
However, Jack Chin, a University of Arizona law professor who specializes in criminal and immigration law, said the Supreme Court ruled in 1898 that citizenship shall be granted to a child born in the U.S. to immigrant parents who are not serving as a foreign diplomat or in a hostile foreign military.
The court, he said, established that all immigrants – including those in the country illegally – are “subject to the jurisdiction thereof.”
“Undocumented people are subjected to laws of the U.S. legally and practically,” Chin said “If you are charged with a criminal offense against the laws of the United States, unlike a diplomat you can’t say, ‘I am immune from your laws,’ and unlike a soldier in a hostile army, you can’t say, ‘You have no practical ability to enforce your laws against me.’”
Even if a new law is passed by Congress, there are no guarantees it will withstand legal challenges.
“It’s easier to pass a statute than amend the Constitution,” said Louis Michael Seidman, Georgetown University’s Carmack Waterhouse Professor of Constitutional Law. “Whether the courts would allow uphold that statute is more problematic.”
Carrie Budoff Brown contributed to this story.
Tuesday, August 10, 2010
By SCOTT WONG | 8/9/10 8:28 PM EDT