Babies born in the United States to non-citizen parents would no longer be automatically granted citizenship under a proposal debated Wednesday in Congress.
Eliminating what is known as birthright citizenship is an especially controversial piece of the immigration debate. One side argues it is a constitutionally protected part of American heritage, and the other says it is a magnet for illegal immigration.
Rep. Trey Gowdy, R-S.C., chairman of the House Judiciary subcommittee on immigration, conducted a hearing on the legal theory that the citizenship clause of the 14th Amendment was never intended to cover children born to undocumented aliens while they are in the country.
Gowdy, a conservative who has tried to broker some compromise with Democrats on immigration issues, did not take a position on birthright citizenship and called it only an “interesting legal debate.”
The citizenship clause is in the 14th Amendment to the Constitution and was passed after the Civil War to override a Supreme Court decision and make sure the children of freed slaves were considered citizens.
The amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
But some argue that the clause should not apply to babies born to people who are in the country illegally.
Lino Graglia, a professor at the University of Texas at Austin School of law, testified Wednesday that the authors of the 14th Amendment could not have intended to cover children of non-citizens because “there were no illegal aliens in 1868 because there were no restrictions on immigration.”
“The Constitution should not be interpreted to require an absurdity,” Graglia said in his prepared testimony.
The idea of eliminating birthright citizenship has been around for years, but previous legislation has not come close to passing. Rep. Steve King, R-Iowa, and Sen. David Vitter, R-La., have both introduced proposals this year to limit birthright citizenship.
King’s bill would limit it to those born in the U.S. with at least one parent who is a U.S. citizen; a legal permanent resident; or an immigrant in active military service.
“Are illegal parents going to decide or are we going to decide … who will be citizens?” King said.
King’s bill has 22 cosponsors, including Rep. Mo Brooks, R-Ala.; South Carolina GOP Reps. Mark Sanford and Jeff Duncan; and Tennessee GOP Reps. Phil Roe, Scott DesJarlais and John Duncan.
But Gowdy’s subcommittee only debated the issue generally and did not formally consider King’s legislation. Gowdy said it would be up to Rep. Bob Goodlatte, R-Va., the chairman of the full House Judiciary Committee, on whether King’s bill is brought to a vote.
Goodlatte on Wednesday said the debate was worth having in part because most developed nations with advanced economies have done away with birthright citizenship policies.
“The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from settled,” Goodlatte said.
Goodlatte also criticized “birth tourism” when pregnant women from other countries travel to the U.S. just to deliver their children, who then become American citizens.
“Even if you believe that birthright citizenship is the right policy for the United States, and I do not, but even if you do, such abuse of our generous policy is unacceptable,” Goodlatte said.
The lone witness to testify in support of birthright citizenship was Richard Cohen, president of the Southern Poverty Law Center in Montgomery.
“Regardless of one’s position on immigration policy questions, the sanctity of the birthright citizenship clause should not be disturbed,” Cohen said. “Any other course would risk creating a new class of second-class citizens.”
Even though King’s bill was not up for a vote, Democrats and pro-immigration groups were critical of GOP leaders for giving the idea of eliminating birthright citizenship a hearing at all.
“It is deplorable those voices are given a platform and audience for these extreme ideas and this passes for legislative deliberation,” said Clarissa Martinez de Castro of the National Council of La Raza. “Those shrill voices have always been there, but where is the common decency in the rest of the party?”
“The idea of fiddling around with the 14th Amendment of the Constitution is taking it a step farther to the extreme,” said Rep. Luis Gutierrez, D-Ill.
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