Why Repealing Birthright Citizenship is More Difficult Than You Think

by Guest Contributor Tomás F. Summers Sandoval Jr., originally published at Latino Like Me


In recent months, the “movement” to repeal jus soli–or “birthright citizenship–seems to be gathering steam.

I use the term “movement” cautiously because, at heart, this is really about political posturing by the right. While there are groups of people who have consistently advocated for this kind of revision of the US Constitution, they haven’t done anything in the last half year to warrant this new attention. What has changed is the number of high-profile politicians and pundits who have made this their “cause of the day” in the hope of securing their election, re-election, and/or high ratings.

The most visible evidence of their work is a now mainstream discussion of the danger of so-called “anchor babies,” or children born to “illegal” immigrants. As this rightist argument goes, the 14th Amendment to the US Constitution–which bestows citizenship on anyone born in the US–acts as a motivation for illegal immigration by promoting a wave of pregnant migrants who come to the US to have children and then use those children to secure their own residency.

I want to point out a few things that are missing in the wider debate, “realities” which should guide your understanding of this very important issue. The first one is simple enough–this “movement” has very little chance of ever being successful.

Repealing or amending part of the US Constitution is an extremely difficult thing to do. It is prohibitive by design, since nobody wants a country where the fundamental laws of the land can change with the whims of the age. Accordingly, changing any amendment requires the rarest of political conditions. To do it, supporters of a new Amendment (which is how you amend another Amendment) would need to follow one of two courses: 1) get a two-thirds majority of both the House and the Senate to pass the Amendment, and then get three-fourths of all States to approve it; or 2) get two-thirds of all States to hold a Constitutional Convention proposing the Amendment, and then get three-fourths of all States to approve it. Neither one of these scenarios has a chance of mustering even the slightest chance of coming to pass relating to the 14th Amendment.

Now, this reality is an important one to grasp, before we engage in any other debate about the issue. The only reason this “movement” has seemingly become so successful is because politicians–from Lindsay Graham to John McCain–are spouting off about “anchor babies” and the reasonableness of having hearings on repealing jus soli. But these politicians know the process that is required of such a move. They know it has no chance of passing, let alone ever being considered by the House or Senate under this (or any recent) configuration. So why doth they protest?

So, before we continue, let’s get our head around the fact that this is an esoteric discussion being led by politicians who are trying to secure their electability among a small yet vocal fringe of their party.

The second reality passing us by is the second point I would like to make: repealing birthright citizenship opens a mess of legal complexities, many of which do not benefit the US. Supporters of this act like the issue is an easy one since all it would do it stop Mexicans from coming to the US and having their babies. What it would really do is provoke a global war on citizenship.

Let’s say a child is born in to an “illegal” parent in a United States where jus soli is not the law of the land. We say this child is not a citizen and they must be deported. But to where? Having been born in the US, they are not a citizen in any other nation of the world. Barring bureaucratic measures taken by the parent on the behalf of the child, they would now be a human being who has no citizenship.

You can’t deport them without the other nation agreeing to take them, which is highly unlikely since they have no vested interest in accepting, en masse, people they consider to be your citizens. So now you have a class of people within your national borders who are neither citizens–ostensibly deprived of rights as basic as the right to exist within your national limits–and yet who are, in fact, legally present within your nation. How do you house them? What do they get to do? What do they not get to do? Do you raise them in federal orphanages? Do they go to school? What happens when they turn 18?

How about this: let’s say we have a child born to an “illegal” mother but the father is “legal.” What about the reverse? Is the child deprived of citizenship or not? Does this differ if the “legal” parent is a naturalized US citizen, a US-born citizen, or a legal permanent resident (LPR)? What if we decide one parent who is a citizen is enough? Are there penalties for pro-creating with an “illegal”? And what about victims of rape? What about women who do not divulge the father’s name or status?

And then there is this complication: what level of “illegality” is necessary to strip a native-born child from becoming a US citizen? Only if the parent is residing in the US without authorization? Do we include people who are here “legally” but working “illegally”? What about people who were once here legally but have overstayed their visa? Does it matter when the migrant gets pregnant? Let’s say they child is conceived when the parent(s) are legal but born when one or both are not? What if the child is born on the exact day a visa expires? What if the migrant has been here for years, unauthorized, but then gets pregnant. Certainly not an “anchor baby.” And what about legal guestworkers who get pregnant and have children while they are working?

These scenarios are hardly far fetched. When you are dealing with a nation the size of the US, who actively promotes the informal importation of as many unauthorized workers as we do, these scenarios are common. They would also clog the US legal system and bring it to a standstill while we worked it all out. Whatever the solution, there would be so many ways around it and/or so many gross violations of common decency as a result, nobody would be pleased with the outcome.

Finally–and I think the most compelling reality that exposes this entire effort for the political smokescreen that it is–the advocates of repealing jus soli are basing their analysis on a bunch of misinformation. When it comes down to it, “anchor babies” do not exist in any measurable fashion. The offensive phenomenon of “stop and drop” is a myth.

This recent report from the Pew Hispanic Center is causing a stir because it estimates that better than 12% of all the children born in the US are born to “illegal immigrant parents.” This seems to statistically demonstrate the level of our “crisis.” But, the report also calculates that as many as 80% of the “illegal” parents have been in the US for one-year or longer. (In case you didn’t know, human babies take about 9 months to gestate.)

Furthermore, because of the data they used, the report does not separate between those children who have one parent who is “illegal” and those who have two. Other fairly recent reports (one, two, three) suggest the number of children with “mixed” parents (in terms of legal status) may be rather high.

So where does this leave us?

If the politicians and pundits know everything that I just described to you, then they are purposefully manipulating the information in order to strike fear in their constituencies. You might ask why they would do such a thing.

If they don’t know what I have just described to you, then they are dumb, uneducated, and/or misinformed. You might ask yourself why people who are elected to represent you don’t do the simple work of research and learning about complex issues before they take stands on them. You might also ask why people who make millions of dollars on TV talking to you about these issues don’t either.

In either case, repealing the 14th Amendment is not only a bad idea, but one that works against any stable democratic republic. And, when it comes down to it, it will do nothing to curb the flow of “illegal” immigration to the US, a phenomenon that exists because of two things: systemic poverty in Mexico and active recruitment and labor needs in the US.