Repeal Birthright Citizenship — and Then What?

No single document does more to warm the cockles of the Republican heart than the Constitution. Yet of late, the Texas GOP has evinced a special disdain for a particular constitutional amendment: The 14th, which contains the birthright citizenship provision.

U.S. Sens. John Cornyn and Kay Bailey Hutchison support a “review” of the amendment. Fifteen of Texas’ 20 Republican congressmen have signed on to legislation that would restrict it. One of them, U.S. Rep. Ron Paul of Surfside, has opposed it since 2002. State Rep. Leo Berman, R-Tyler, has in each of the past two sessions proposed legislation that would effectively do away with it — and vows to do it again in 2011.

As anti-immigration sentiment continues to rise along with border violence — at least on the Mexican side — proposals to abolish the 14th Amendment’s birthright citizenship provision have ricocheted through the political noise machine as an antidote for the incidence of “anchor babies.” That pejorative describes babies born to illegal immigrants who allegedly hope having a child granted automatic citizenship will help “anchor” them in the U.S. But as a practical matter, what would the removal of birthright citizenship mean for the country?

Pierce the fog of rhetoric and you’ll quickly discover that nobody really knows, including the state and federal lawmakers yelling loudest for change. Of the dozen congressional offices the Tribune contacted, none could cite any research or give any insight into how the citizenship process might work if birthright citizenship no longer existed, except to say — in the case of a spokesperson for U.S. Rep. John Carter, R-Round Rock — that it would be up to the “federal rule-making process” once the law had passed.

"The debate is always about the theoretical. … Whenever you talk about the practical aspects of it, there's silence,” says Margaret Stock, an Anchorage, Alaska-based immigration attorney who’s written extensively and testified before Congress on the subject. “Because anybody who understands how citizenship is determined in the absence of the 14th Amendment quickly realizes that we have a huge mess on our hands. And it will cost billions of dollars if we change the amendment's current interpretation."

The birth of birthright

The first line of the farthest-reaching of the Reconstruction amendments grants citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." The brief words of the “citizenship clause” encapsulate for many the beauty of our bootstrapping, melting-pot nation. Set aside tributes to the dawn of the republic — and the threat of terrorist anchor babies, for that matter — and the 14th Amendment still provides a remarkably bureaucracy-free path to citizenship: If you’re born here and subject to our laws, you’re a citizen.

Americans can prove citizenship in three ways. Two of them — passports and Social Security cards — hinge on the third: a birth certificate issued by a hospital. (American citizens’ children who are born abroad can get a “certificate of citizenship” that serves the same purpose). If a birth certificate could no longer conclusively prove citizenship — which, if the citizenship clause were repealed, it couldn’t — some other document would need to take its place. And it couldn’t be a passport or a Social Security card, because both depend on birth certificates or, of course, the notoriously complicated naturalization process. That means, according to Stock, that advocates of repealing birthright citizenship are “basically calling for a national ID system” — a prospect many libertarian-leaning Republicans, like Paul, find repugnant because of the power it extends to the federal government.

Opponents of birthright citizenship point out that the U.S. is among only a few countries that grant automatic citizenship to every child born within national borders. (State Rep. Debbie Riddle, R-Tomball, incorrectly told CNN’s Anderson Cooper last week that the U.S. was the only country that did so.) There are 28, though the United States and Canada are the only countries with advanced economies that do so, according to research at the Center for Immigration Studies, a conservative Washington-based think tank that calls itself “pro-immigrant, low-immigration.” Since 1983, the United Kingdom, Australia, Ireland and New Zealand have all ended their birthright citizenship policies, but all of those countries either already had a form of national birth registry in place, unlike the U.S., where states are in charge of issuing birth certificates or have a much smaller population to manage.

That’s why Stock, a Republican and member of the Federalist Society, says any attempt at navigating a post-14th Amendment citizenship process would require the creation of a new federal agency just to oversee it. And, she says, any new law that complicates citizenship requirements would result in “full employment for lawyers” to litigate endless gray-area scenarios. For example: “What if the mother says, ‘I was going to become a citizen, but I went into premature labor two hours before I was going to my oath ceremony at Dallas Memorial Stadium?’” 

Uphill battle

Those who call for an end to birthright citizenship could do it by either passing a statute like the Birthright Citizenship Act of 2009 — which 15 Texas congressman co-sponsored when former U.S. Rep. Nathan Deal, R-Ga., introduced it — or through an outright repeal of the 14th’s citizenship clause, which would require the adoption of a new amendment.

Constitutional amendments are famously difficult to pass. They require a two-thirds vote from both the House and Senate and approval by three-fourths of the state legislatures. A second route — never attempted — calls for two-thirds of the state legislatures to propose an amendment at a constitutional convention. That amendment would then have to be approved by three-fourths of the state legislatures.

Yet if 14th Amendment foes really want to translate hot-blooded rhetoric into action without going the new amendment route, they would find it difficult if not impossible to end birthright citizenship through legislative means. Even if such an effort made it through a Democrat-controlled or nearly evenly divided Congress, the courts would likely strike down any such statute as unconstitutional. Deal’s bill would change the portion of the U.S. code that interprets the citizenship clause to include only children born to citizens and immigrants in the U.S. legally.

Texas Solicitor General James Ho is among the legal scholars who believe any statute Congress passes would not pass constitutional muster. Ho testified in 2007 in the Texas House against a Berman bill that would have prohibited children of illegal aliens from receiving state benefits. Ho, who said he could not speak on the record for this article, argued in a 2007 op-ed in the Los Angeles Times that “birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.” And that right, Ho said, has been consistently upheld by the U.S. Supreme Court, first in 1898’s United States vs. Wong Kim Ark, which held the U.S.-born child of Chinese immigrants was a citizen, and more recently in 1985’s INS vs. Rios-Pineda, in which the Court unanimously upheld the citizenship of a child born to undocumented workers.

Deal left Congress in March — in the midst of an ethics scandal — but recently secured the Republican nomination for governor of Georgia. When asked whether his office had researched what the citizenship process would look like if birthright citizenship were removed, a spokesperson for Deal said, “You'll have to talk to someone in the federal government.”

Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.