Posted on November 22, 2006

Bill Rekindles Debate On Birthright Citizenship

Juan Castillo, American-Statesman (Austin), Nov. 18, 2006

Anyone born in the United States is an American citizen, a right with post-Civil War roots and defined in the 14th Amendment to the U.S. Constitution.

But a controversial bill filed for the 2007 session of the Texas Legislature, one of a flurry of measures seeking crackdowns on illegal immigration, is challenging this long-held tenet of U.S. citizenship.

House Bill 28, filed Monday by Rep. Leo Berman, R-Tyler, would exclude U.S.-born children of illegal immigrants from access to public education and health care, unemployment, public housing, disability and other state benefits. Analysts think it is the first-ever state challenge of birthright citizenship.

With the start of the legislative session still more than seven weeks away, the bill is stirring an outcry among critics, who say it is blatantly unconstitutional and who question the fairness of punishing U.S. citizen children for their parents’ decisions to enter the country illegally. The dust-up is rekindling a bitter debate about birthright citizenship and the 14th Amendment that provides it.


Berman’s bill is unconstitutional, Levinson said. “That’s not even a close case,” he said. In recent years, however, some who want to clamp down on illegal immigration have seized on the 14th Amendment, saying it was never intended to grant citizenship to children of illegal immigrants.


More than 3 million children born in the United States have at least one parent who is an illegal immigrant, according to researchers at the Urban Institute in Washington.

Immigrant rights groups say the number of cases in which parents enter the country illegally for the purpose of having a baby is considerably smaller than critics allege, a position captured in the plain-spoken language of the late U.S. Rep. Barbara Jordan of Texas in 1995.

“People come to this country because they want jobs. They don’t come to have babies,” said Jordan, then the chairwoman of the U.S. Commission on Immigration Reform.

Berman said he expects — and wants — a court challenge if his bill passes because he hopes to force the Supreme Court to review the 14th Amendment. Levinson says it’ll never get there.

“It would be knocked down by whatever court heard it first,” Levinson said.

Legal experts interpret a 1982 Supreme Court decision as at least indirectly affirming the 14th Amendment’s citizenship rights for U.S.-born children of illegal immigrants. The decision struck down a Texas law and required that the state provide public education to children regardless of their legal status.

“The environment has changed considerably since that time. We didn’t have 20 million illegals,” Berman said. Analysts generally estimate the illegal immigrant population in the United States at 11.5 million to 12 million.


For more than a decade, concerns about surging illegal immigration have led to a re-examination of birthright citizenship.

But congressional efforts to revoke the right have proved to be nonstarters, said Angela Kelley, deputy director of the National Immigration Forum.

“The basic reason is because it’s unconstitutional,” Kelley said. In 2005, U.S. Rep. Nathan Deal, R-Ga., offered a bill to amend the Immigration and Nationality Act to end birth citizenship. The measure has not moved beyond committees.


Legal experts disagree about whether a constitutional amendment or a federal statute is needed to end birthright citizenship.


As filed, Berman’s bill would deny education and health care benefits. But later in the week, Berman said he had decided to remove them from his bill because the U.S. Supreme Court has affirmed them as constitutional rights and because leaving them in would hurt his bill’s chances. “We’re not violating the Constitution,” Berman said.

He said his legislation is necessary because the federal government is doing nothing about illegal immigration, which he claimed costs Texas taxpayers $3.5 billion a year, citing a report by the Lone Star Foundation, a think tank that touts what they call traditional family values and free enterprise.


Berman’s bill and others signal that Texas is joining a growing list of states and municipalities attempting to legislate responses to illegal immigration, long viewed as a federal responsibility.

Earlier this week, the Dallas suburb of Farmers Branch became the first city in Texas to pass measures fining landlords who rent to illegal immigrants and declaring English the city’s official language.

On the same day Berman filed his bill, the first day to file bills for the 2007 session, lawmakers introduced several measures targeting illegal immigration issues. Rep. Burt Solomons, R-Carrollton, filed a bill authorizing the state to sue the federal government to recover costs incurred by illegal immigration and demanding that it enforce immigration laws.

Dan Kowalski, an Austin immigration attorney and editor of Bender’s Immigration Bulletin, said states and cities are “trying to find that middle ground point in the law where they can legislate locally and that does not step over the (federal government’s) pre-emption line.”

But Kowalski added, “Whether it’s the issue of the 14th Amendment or housing or local employment, state and local lawmakers need to know that all these issues have been carefully examined by constitutional law experts for decades. They should do a little research before filing bills or enacting local ordinances.”