For decades, immigration officials have granted U.S. citizenship to all children born on American soil.
But Rep. Nathan Deal, R-Ga., wants to see that practice end for children of illegal immigrants.
“Birthright citizenship is one of those things that has become a magnet for illegal immigrants to come over here,” said Rep. Deal, who has filed a bill that would restrict birthright citizenship to children who have at least one parent with legal resident status or U.S. citizenship.
At the crux of the issue is a clause in the 14th Amendment, passed in 1868 after the Civil War with freed slaves in mind, that granted citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
That last clause—”subject to the jurisdiction thereof”—has many conservatives and border-control activists arguing that the amendment was never intended to apply to illegal immigrants.
Rep. Deal, whose Northwest Georgia district is heavily Hispanic, said the United States is an anomaly in a world where 122 countries do not grant birthright citizenship, including all of Europe, while 33 do, with the United States being the largest.
He has introduced similar bills three previous years, and though he acknowledges that his bill likely will not be brought up for consideration, especially with Democrats controlling the House, he said his cause is gaining momentum, with 89 co-sponsors to the bill, all Republican, the most ever.
Rep. Zach Wamp, R-Tenn., one of the co-sponsors, said the legislation would be a sorely needed deterrent to illegal immigration, particularly with comprehensive immigration reform stonewalled in Congress.
Legal experts disagree on the constitutional merits of Rep. Deal’s bill.
Peter J. Spiro, a constitutional and immigration law professor at Temple University who testified in 2005 before Congress on birthright citizenship, said similar legislation has been introduced since the mid-1990s and gone nowhere.
“The government has always assumed that these children have citizenship at birth,” he said. “In theory, the executive branch could start denying citizenship to the children of undocumented aliens, but there’s never been any suggestion within the executive branch of that happening.”
Even if the bill were to pass, he said, the judicial system would likely strike it down, ruling that a constitutional amendment, which needs to be ratified by three-fourths of the states, would be required to change the 14th amendment’s birthright citizenship provision.
But John Eastman, dean of the Chapman University School of Law, who also testified before Congress in 2005 on the issue, said he believes the provision can be changed statutorily by Congress without a constitutional amendment.
He said the 14th Amendment has been misunderstood by immigration officials and the courts since the 1950s, when birthright citizenship began being granted on a wide scale to illegal immigrants.
“For the people that wrote that clause, there was a very well-defined distinction of sovereign jurisdiction,” Mr. Eastman said. “Since the constitution doesn’t give birthright citizenship, then of course (a change) can be done statutorily.”