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Brooke Huley

Abstracted from: Brooke Huley, Automatic Birthright Citizenship: How Europe Has Fallen and Why We Should Not Follow, 19 Southwestern Journal of International Law 215-376 (2013)(215 Footnotes) (Student Note)


Through the Fourteenth Amendment, our nation currently grants automatic citizenship to children of undocumented immigrants--as well as all other children--born on U.S. soil. However, legislators have recently attacked this century-old policy. They have proposed both a federal law and a constitutional amendment that would reinterpret the Fourteenth Amendment to deny automatic birthright citizenship unless the U.S.-born child had at least one parent who was a U.S. citizen, a legal permanent resident, or an undocumented immigrant in active military duty. Iowa Representative Steve King introduced the Birthright Citizenship Act of 2011, which would amend the Immigration and Nationality Act, in the House of Representatives. Additionally, Louisiana Senator David Vitter and Kentucky Senator Rand Paul have proposed a constitutional amendment that would alter the Fourteenth Amendment. While similar provisions have been proffered before, supporters of restricting birthright citizenship "are not giving up on their drive to force a reinterpretation of the 14th Amendment." If they succeed, these alarming attempts to deny the rights of children born in our country will have grave consequences.

In the contentious debate surrounding this issue, proponents of the new law flaunt the idea that Europe has eliminated birthright citizenship for children of undocumented immigrants and posit that we should therefore do the same. However, supporters seem to oversimplify the changes in European citizenship policies and fail to mention the questionable rationales behind them. Furthermore, proponents claim that the new law will reduce illegal immigration and that the law is justified because illegal immigrants are allegedly having "anchor babies" on U.S. soil in order to circumvent our nationality law and gain citizenship. "Passage of this bill will ensure that immigration lawbreakers are not rewarded, will close the door to future waves of extended family chain migration, and will help bring an end to the global ‘birth tourism' industry," Representative King stated.

I assert that the proposed federal law and constitutional amendment must be rejected and that these purported reasons for changing the law do not reflect reality. While the United Kingdom and France no longer give automatic birthright citizenship to native-born children of undocumented immigrants, the shifts in nationality law in these two countries have been plagued by racial bias. Moreover, Germany presents an alternative approach in that it recently made it easier for German-born children of immigrants to gain citizenship in order to facilitate integration into German society. Regrettably, the proposed shift in the United States more closely resembles the racially biased shifts in the U.K. and France rather than the integration-focused shift in Germany.

Additionally, the new legislation fails to address legitimate concerns regarding illegal immigration and is also riddled with other problems and inequities. First, the proposed federal law is unconstitutional because it alters a Supreme Court interpretation of the Constitution and circumvents the constitutional amendment process. Further, Congress has the power to grant citizenship but not to take it away. Second, the proposed statute and amendment unjustly discriminate against innocent children based on the actions of their parents and will take vital rights from almost 400,000 babies each year. Third, the legislation may be based not on sound policy but on century-old false assumptions that Hispanics are unwilling to assimilate and unworthy of citizenship. Finally, the new law would actually worsen the illegal immigration problem, would cause trouble for all Americans by making the process for confirming citizenship for everyone more difficult, and is based on an erroneous notion that Hispanics come to America to have children and circumvent our law rather than to give their families a better life.

The new law would significantly impact millions of U.S.-born children and hinder their ability to succeed and contribute to our nation. Consider the story of Norma Jimenez, a young woman who was born in Mexico and brought to the United States at age one. She has lived here essentially her entire life and has recently graduated high school in Arizona with a 3.7 GPA. Nonetheless, she will be denied financial aid for college. Norma wants to become a nurse, but she will not be allowed to legally work in the United States and will struggle to achieve economic success. Norma cannot even have a social security number. Even worse, she will have no political voice and risks being deported. "At the end, you just see yourself as trapped," Norma says. Despite having grown up here and wanting to contribute by becoming a part of the noble nursing profession, she is not a U.S. citizen and thus will be denied these rights. Although Norma was not U.S.-born, her story would become the story of millions of children born in the United States if the new legislation were passed. The new law would deny citizenship to many additional intelligent, worthy individuals and thereby strip U.S.-born persons of the same crucial opportunities that Norma lost. Norma notes that she is "very frustrated" by her circumstances but recognizes that the situation would be even more frustrating if she had been born in the United States and yet was still robbed of citizenship rights.

The United States should not deny automatic birthright citizenship to children of undocumented immigrants because the proposed law is unconstitutional, is unfairly discriminatory against faultless children, may be based on unsubstantiated biases against Hispanic immigrants rather than a desire to address real immigration problems, appears to serve no legitimate purpose, and would negatively affect all Americans. Part II of this comment describes how the Fourteenth Amendment and cases interpreting it currently give automatic birthright citizenship to all U.S.-born children, regardless of their parents' immigration status. Part III chronicles the recent changes in nationality law in the U.K., France, and Germany and explains the reasons behind them, arguing that the U.K. and France provide poor examples that should not be followed. Finally, Part IV argues that the proposed legislation should be rejected due to its conflict with the Constitution, the injustices it would cause, and the fact that its negative consequences would greatly outweigh any positive impact it could have.