Immigration Debate May Get Uglier (and Nuttier) Here in Arizona

Readers know I oppose recent Arizona immigration legislation and enforcement initiatives.  I don't think government should be stepping in to effectively license who can and can't work in this country, and am thus a supporter of open immigration (which is different from citizenship, please note).  As I support open immigration, both from a philosophic standpoint as well as a utilitarian perspective, I don't support laws to get tougher on illegal immigrants, any more than I support laws to get tougher on the failed practice of drug prohibition.

That being said, reasonable people can disagree, though some for better reasons than others.  But I don't see how all these folks who support tougher laws on immigration with the mantra that it is all about the rule of law can justify this piece of unconstitutional garbage:  (Hat tip to a reader)

Buoyed by recent public opinion polls suggesting they're on the right track with illegal immigration, Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona "” and thus American citizens according to the U.S. Constitution "” to parents who are not legal U.S. citizens. The law largely is the brainchild of state Sen. Russell Pearce, a Republican whose suburban district, Mesa, is considered the conservative bastion of the Phoenix political scene....

The question is whether that would violate the U.S. Constitution. The 14th Amendment states that "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was intended to provide citizenship for freed slaves and served as a final answer to the Dred Scott case, cementing the federal government's control over citizenship.

But that was 1868. Today, Pearce says the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," Pearce says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right."

I didn't like SB1070 that much, but as ultimately amended it was not nearly as radical as this.  I think those of us who feared SB1070 as a first step on a slippery slope should feel vindicated by this.


  1. William J McKibbin:

    Regardless of the outcome of Arizona's political maneuvers, it may very well be time for the states to figure out how to maneuver politically for constitutional amendments rather than for public support directly. The power of the people is limited by the constitution, and for good reasons. Thus, if states have specific issues with how the Federal government is or might handle certain issues, then it may be prudent to go directly into efforts that seek a constitutional convention rather than a public referendum. I can see how immigration might eventually be left to the states (if that is feasbile). After all, immigration in Maine is not the same problem as immigration in Arizona. Politics are too liquid today to leave solely in the hands of public opinion alone. If the US needs immigration reform, perhaps that should be an agenda item for a constitutional convention. In the mean time, I doubt that Republicans in Arizona are going to get their way. Thanks for the opportunity to comment...

  2. Craig:

    No matter what I think of the bill, it's a lead-pipe cinch that the Obama administration will suddenly (and for a short time only) become strict constructionists.

  3. KTWO:

    The states, or even the Congress, will get nowhere making rules for anchor babies. The Supreme Court has settled that. It isn't hard to read the 14th Amendment.

    Anchor babies are citizens. Period. Some people confuse citizenship vs. residence. A minor - the anchor baby - must obey his parent's wishes about place of residence. If the parents choose to live in Mexico their minor children have no say about it.

    The law is also clear about illegal alien parents and anchor babies. An anchor cannot grant his parents permission to reside in the US. Permission to live in the US has to come from immigration law.

    I wish Pearce would shut up about the anchors. Trying to harass them with state measures is doomed to fail. And Congress can't do it either.

    From the other side we will hear otherwise sane people say AZ plans to take anchor babies and toss them like beanbags South into Sonora. That is obviously false alarmism; no state can deport anyone. The federal government can deport aliens but not citizens.

  4. agesilaus:

    This is from Patternico's blog (he's an LA DA):

    "Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born “subject to” U.S. jurisdiction because, among other reasons, the person so born could not change his status by his “own will without the action or assent of the United States.” And “no one can become a citizen of a nation without its consent.” Graglia says this decision “seemed to establish” that U.S. citizenship is “a consensual relation, requiring the consent of the United States.” So: “This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person’s citizenship than to make the source of that person’s presence in the nation illegal"

    I was recalling that there was some change in this that allowed the anchor baby problem to be created back in the 1950's or 60's probably some change in federal law. The constitution does not support the current view anyway.


  5. JBurns:

    Actually, my understanding is that the constitutional question is not nearly as clear cut as you assert. I seriously doubt that Arizona could deny citizenship to children born to illegal aliens, it is very likely that Congress could.

    - In the 1880s, the S. Ct. held that only the children of persons subject to the jurisdiction of the U.S. (in a sense of being a subject of the U.S., not of a foreign nation) are covered by the 14th Amendment. The decision related to children born to foreign dignitaries (there was not really a concept of illegal immigration at the time). Thus, the S. Ct. has held that the 14th Amendment does not require that all children born in the U.S. be granted citizenship, regardless of circumstance.
    - Congress passed a law in the early 1900s granting citizenship to Native Americans as they were arguably not subject to the jurisdiction of the U.S. and thus would not receive automatic citizenship under the 14th Amendment.
    - Nothing that I am aware of contradicts the above events.

  6. agesilaus:

    Citizenship would certainly be a Federal responsibilty so I agree a state could not pass a law affecting it. But Congress can and should do so. And the very least these children should be required to leave when their parents are caught and then permitted to return after they are 18 and apply for citizenship.

    I distinctly recall that one of my friends back in the 1960's told me that he had one German parent and one American and may have been born in Germany. He said that he had from his 18th to 21st birthday to declare if he was going to take German or US citizenship. So I suspect the law was different then.


  7. Stan:

    This bill will die, and even if passed won't last long. I think you're right implying it was more about the debate than making effective law. Ugly debate is still good debate, if you believe more speech is the cure to bad speech.

  8. Che is dead:

    What JBurns said. The passage of this law would set-up a court challenge which could lead to clarification of those previous decisions relative to illegal aliens. As far as I'm concerned, there is no downside.

  9. KWO:

    Part of the difficulty of dealing with anchor babies disappears if we remember that everyone agrees Congress has the power to confer citizenship upon people not receiving it by the 14th Amendment.

    Thus when Congress acted to make all American Indians citizens the statute was completely constitutional.

    The questions are the opposite. When can Congress deny or withdraw citizenship? And can Congress legislate deportation of citizens who are minors?

    The 1884 case Elk V. Wilkins was IMO properly decided although the decision seems odd today because we no longer would call tribes alien nations.

    IMO a more pertinent case is US V. Wong Kim Ark in 1898.

  10. Mike S:

    @William J McKibbin:
    "The power of the people is limited by the constitution, and for good reasons."

    You seem to have "the federal government" and "the people" reversed in your understanding of the Constitution. It defines and limits the powers of the federal government greatly, the states to a minor extent, and the people practically not at all. The 10th amendment in particular makes it plain that everything not expressly defined in the Constitution is left to the people and the states.

    Back on topic, Article 1 Section 8 delegates to Congress the authority "To establish an uniform Rule of Naturalization," therefore, it is not a power given to the states, and AZ has no legitimate authority to change it.

  11. astonerii:

    "am thus a supporter of open immigration (which is different from citizenship, please note)."

    Really Coyote?

    "that would deny birth certificates to children born in Arizona — and thus American citizens according to the U.S. Constitution — to parents who are not legal U.S. citizens."

    You support unlimited open migration/immigration which is different than citizenship, but right here you are supporting citizenship for migrants. You are such a dweeby little lying loser when it comes to immigration. I mean seriously, when have you ever been totally honest in any one single post on immigration? I cannot remember reading a single one of your posts on immigration where there were not so many diametrically opposed statements that you would be able to convince me of anything. Here you state that you are not for citizenship for immigrants but are against a law that prevents citizenship for immigrants. While, yes, the way the 14th amendment is abused today, it is used to sanction the citizenship of anyone and everyone born within the borders of the United States of America, but this law would bring this up to the supreme court of the united states of America to see what the truth about the 14th amendment really is. Most Americans do not support citizenship for children born to illegal immigrants, or any immigrants who are not at least permanent residents. In fact, this anchor baby B.S. is part of the reason why most Americans do not support the way the 14th Amendment is abused. You are wrong on this, just like you are wrong on each and every post you make about immigration because as a country, we do have the right to decide who can and cannot work in this country, we can even decide that certain people who are citizens are not allowed to have certain jobs. We as a society that have voluntarily grouped together get to decide the rules, even if it takes a few decades to getting around to updating them, it does not mean that we lose our rights to create a government for ourselves and not for foreigners.

  12. me:


    Either I am confused or you are very confused. We as a society have made up our mind about who gets to be a citizen, namely anyone born in the US regardless of who their parents are and we certainly are well within our rights to create a government for all American citizens, which, again, includes all those born in the US.

  13. Frederick Davies:

    " thus a supporter of open immigration (which is different from citizenship, please note)..."

    That is a bit disingenuous, don't you think? Do you really think it is feasible to keep part of the population in the country without eventually giving them citizenship. In practice, open immigration means open citizenship.

  14. ParatrooperJJ:

    Are foreign diplomats' children born in the US citizens? Answer - no. The controlling clause is "and subject to the jurisdiction thereof." All it would take is a simple federal law change to eliminate birthright citizenship. Will this state law do that? No, it won't, but it will have the same practical effect. No birth certificate generally means no passport.

  15. Matt:

    It's worthwhile to note that Ron Paul continues to bring up the prospect of ending birthright citizenship in the US at the national level -- irrespective of how un-brown your parents might be.

    It's also worth pointing out that universal suffrage was not a feature of the USA as it was originally designed and implemented, nor were popular elections for senators.

    Our downward spiral towards total democracy has been aided by many things. Giving anyone who happened to be good at choosing where their parents gave birth a vote but keeping the best doctors and engineers the rest of the world has to offer us _OUT_ is not working in our favor.

    If you want US policy to continue to be generated by and marketed for the leeching class, by all means, carry on.

    I realize that the minarchist or libertarian dream solution is to tear the government down so much that it doesn't matter who gets the vote. I agree with that goal. How's that going for us so far?


  16. Gil:

    Indeed Frederick Davies - how can an immigrant not be a citizen if the borders are open? Isn't automatic citizenship via border-crossing in the 1700s and 1800s the romantic view of Libertarians?

  17. Tim:

    @astonerii The point of open immigration isn't supporting citizenship for immigrants; it's supporting a person's inalienable right (granted by their creator) of the pursuit of happiness. Does a person own their body, and the products of their labor; and does that natural right exist regardless of where they are, or are their body and labor property of the government? Do they have the freedom to enter into employment contracts to the mutual benefit of both parties; or do they require licenses and permits from the government? Just as the power to tax is the power to destroy; so is the power to license and permit the power to destroy.

    As a side note, I'm wondering if the loophole here is that they won't grant birth certificates to children of illegal immigrants; but say nothing about their actual citizenship status, kinda putting them in a legal limbo -- they're citizens; but they can't produce the paperwork showing they are.

  18. Uno Hu:

    I enjoy Coyote's blog, though I do not always agree with him.

    In this case, IF there is a case where the Supreme Court has ruled definitively on the issue of anchor babies having U.S. citizenship, I am not aware of it (full disclosure - I am not a constitutional lawyer and there may well be such a ruling of which I am not aware - citations anyone??). This was certainly NOT the intention of the 14th Amendment when is was written (never occurred to the authors) nor was it a factor given consideration in the adoption of the amendment by various states when they considered the amendment for adoption (history of that adoption notwithstanding).

    If there is not firm precedent for this, the proposed Arizona law is an excellent chance to get a test case in front of the Supremes so they can either uphold the law in accord with original intent of the 14th Amendment, or if they choose, write some new law in accord with our "evolving standards of decency". In general, our legal system is not set up to reward lawbreakers, with a couple of prominent exceptions.

    As to the anchor babies themselves, when illegals have them the illegals are fully aware of their illegal status. This should NOT prevent deportation of illegals. They can take their "anchor baby" back to whereever they sneaked in from. If it turns out that the Supreme Court does uphold the "new and improved" meaning of the 14th Amendment, then the "anchor baby" can then present his birth certificate and claim his (not his parents') citizenship when he turns 18.

  19. TakeFive:

    Seems like the 14th is as open to interpetation as the 2nd.

    People like to argue the 2nd should be considered in regard to its time period when guns would be needed to repel the British, and that this is no longer the case, hence the 2nd should be scrapped or severly hobbled.

    But the 14th, clearly written to establish the citizenship of slaves, gets to be part of the "living" constitution molded to the politics of the day.

    While were at it, let's have a go at the 10th...

  20. caseyboy:

    William, I could not read past your comment and felt compelled to respond. "The power of the people is limited by the constitution, and for good reasons." The people are sovereign. All power resides from the people. The government is of and for the people. In particular the Federal government was given specific authority, which it has continuously exceeded through unconstitutional laws and executive orders. We don't need a constitutional convention, we need legislators and justices that follow the existing constitution.

  21. KTWO:

    I'm with Uno Hu and others about a test case. The USSC has not totally, finally, definitely, and utterly closed the door on the citizenship clause of the 14th. The "subject to the jurisdiction" phrase seems the only way to challenge.

    I don't see any chance whatever that the SC will change the present interpretation.

    But the topic is a proposed AZ statute that will somehow frustrate the anchors and/or their parents. i.e. in obtaining birth records, etc.

    IMO that would violate the equal protection clause and be struck down. Thus it would not provide a test of the citizenship clause.

    To settle the citizenship clause a restrictive federal statute must be challenged. And we don't have one and won't for a good while, if ever.

  22. dave smith:

    The court will be able to strike down this law easily without providing any clarity on the issue of citizenship. They will say that declairing who and who is not a citizen (under the 14th amendment or anywhere else) is a Federal issue.

    As a side comment, this new proposal seems just mean to me.

  23. the other coyote:


    You state that you are opposed to illegal immigration laws because everyone should have the right to work where they choose. But what do you say about the people who immigrate who have no intention of working? Who are immigrating as a way into the welfare state? I hate the welfare state as much as you do, and wouldn't it be easier to scale it back if the number of people on the public dole was less, rather than more?

    Immigrating doesn't always equal working.

    I agree with you that working should not equal citizenship and think it is entirely possible to grant some, limited work permits without citizenship, even for extended periods of time. The USA does it all the time with 7 year H1B Visas. My father worked in various middle eastern hellholes for a total of 12 years during his oil company career. Nobody on the Saudi penninsula offered him citizenship.

    All that being said, I disagree that the number of foreign workers US businesses claim are needed, are really needed. I have worked in law/HR at 3 Fortune 500 companies and have seen a lot of system gaming to bring in (1) cheaper engineers/programmers than could be hired from the US or Canada (2) a friend or relative, who happens to be from a foreign country. I had an HR manager game the system (she posted the available job in her cube) in order to get a visa for a guy she shacked up with in Cabo. He was hired for a job he was TOTALLY unqualified for, when any number of Americans - had they KNOWN about the job - would have been "better qualified citizens" or whatever the buzz phrase is. If after posting, you find an American who can do the job, the visa process ends. Trust me, everybody jacks with the posting process so they can claim they couldn't find an American.

  24. the other coyote:

    dave smith:

    What seems mean about denying non-citizens access to the US welfare state? I don't think it's mean at all to keep my money for my kids, instead of spending it (via CHiP, Section 8 housing, Medicaid, WIC, ADFC) on other people's kids.

    Hang out at Parkland Hospital in Dallas for one day and tell me you think it's mean. Most of the babies born there are born to illegals, who scraped together the bus fare to come from Monterery specifically to give birth in the US. A women lawyer's group here has a baby clothes drive every year so the brand new American citizens born at Parkland have a onesie to wear out of the hospital.

  25. KTWO:

    While I am more interested in the legal views I will venture into the welfare swamp. aka entitlements, social justice, etc.

    Economists, among others, have pointed out that when other factors are equal the poor will drift to where social benefits are higher. Why not?

    Forget Mexico and the US for a moment, let's consider the US and Canada. And the cities of Detroit and Windsor.

    If the border and citizenship is meaningless why not cross to Windsor for free Canadian health care? It may also be better than you can get at free clinics and hospitals in the US.

    Why not encourage your aged and destitute relatives to live on the Detroit side and get higher welfare payments and live in Section 8 housing?

    (example only, welfare might be higher in Canada for all I know). You can still visit them easily. Where is the downside?

    A meaningless border or citizenship will cost the more generous nation more. The other nation will be subsidized.

    Here is a mini-example. In AZ some seniors travel to the border to buy prescription drugs at far lower prices in Mexico. That is illegal by US law but I understand there is no enforcement.

    So the seniors are using the better option. And the less a border means the more people will choose to buy in the lower price nation but live in the more rewarding nation.

  26. dovh49:

    If the core issue is socialism why don't we focus on getting rid of that? The illegal immigration is a non-issue.

  27. Frito:

    How's the open borders thing going for you?
    Well, maybe you can get your contracts from Mexico, and suck on their tit instead!