George Will has an excellent column today urging Congress to end automatic birthright citizenship for illegal immigrants. Bravo. Legal immigration from Mexico and other countries is wonderful, but illegal immigration continues to have a huge negative impact on our country. Comprehensive immigration reform legislation is likely this spring, and any meaningful legislation will get rid of automatic birthright citizenship. George Will quotes a recent law review article by Lino Graglia:
It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry.
Most Americans are sick and tired of futile half-measures to stop illegal immigration, such as the recently-abandoned "virtual fence" at the southern border. There are effective steps that Congress could take, and eliminating automatic birthright citizenship is at the top of the list, even though it raises some legitimate constitutional concerns. As George Will's column today points out, those concerns are not convincing.
Accordingly, in order to get the ball rolling, allow me to draft some statutory language that would get the job done:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Birthright Citizenship Act of 2011".
SECTION 2. CITIZENSHIP AND JURISDICTION WITH RESPECT TO CERTAIN PERSONS.
(a) Congress hereby finds and declares as follows.
(1) Legal immigrants have always been welcome here in this country, and always ought to be welcome here.
(2) Automatic birthright citizenship for newborn children of illegal immigrants has provided an inducement to illegal entry, and has thereby subjected the laws to continual infraction and the government to degradation.
(b) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, pursuant to authority under Article I, Section 8 and Article III, Section 2 and also Amendment XIV, Section 5 of the Constitution:
(1) The federal courts shall not have jurisdiction over any person barred from lawful presence in this country, nor any newborn child born in the United States with parents barred from lawful presence in this country, to any greater extent than the federal courts have jurisdiction over foreign diplomats.
(2) Executive branch officials shall deem the residence of any person barred from lawful presence in this country, and the birthplace of a newborn child born here with parents barred from lawful presence in this country, equivalent to a diplomatic compound or occupied territory for purposes of determining federal jurisdiction.
(3) A newborn child, born here with parents barred from lawful presence in this country, shall not have a different citizenship or nationality than those of his or her parents.
(4) Persons barred from lawful presence in this country shall have a continuing duty to respect the laws of the United States, and executive branch officials shall have authority to declare whether such a person is persona non grata and shall also have authority to revoke or restore the immunity of such a person from federal prosecution on a case by case basis in the event of deportation, or in the event of reentry, or in the event of consent from the person's home country, or in the event that effective prosecution reasonably appears unlikely in the home country.
(5) Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended--
(i) by inserting "(a) IN GENERAL- " before "The following";
(ii) by redesignating paragraphs (a) through (h) as paragraphs (1) through (8); and
(iii) by adding at the end the following:
"(b) Definition- Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered ‘subject to the jurisdiction’ of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is at the time of birth--
"(1) a citizen or national of the United States; or
"(2) an alien not barred from lawful presence in the United States, and not having diplomatic immunity."
(iv) In case of an irreconcilable variance between the other portions of this act and the Constitution, then, at minimum, these changes to the United States Code shall remain in force. Additionally, the other preceding portions of this act shall not be held effective except to the extent necessary to render constitutional these changes to the United States Code.
(6) Nothing in this act shall affect any of the legal rights or privileges that are owed equally to persons irrespective of citizenship, according to either state or federal law, or both.
(7) Nothing in this act shall affect the jurisdiction that any state government may have over any person at any time.
(8) Nothing in this act shall affect the citizenship or nationality status of any person born before January 1, 2011.
(9) Nothing in this act shall diminish the ability of the federal government to expel any person, including diplomats and other persons described in this act.
(10) Nothing in this act shall affect eligibility for naturalization, nor shall affect jurisdiction over persons who are naturalized.
Any congresscritters listening? :-)
UPDATE (3/31/2010): For those of you who have not read the Graglia article linked above, Professor Graglia argues that "subject to the jurisdiction thereof" in the Fourteenth Amendment originally meant “not subject to any foreign power” or alternatively “not owing allegiance" to any other country. Therefore, Graglia suggests, a latter-day Dred Scott would be entitled to citizenship, whereas an infant child of illegal immigrants would not. This issue has never been squarely presented to the U.S. Supreme Court. I've tweaked the draft statute above to make it a little better, in view of the currently pending H.R. 1868.
UPDATE #2 (4/7/2010): I just want to add that I do not agree with Graglia and Will on one point: to the extent they argue against a constitutional right of birthright citizenship for children of legal resident aliens, that seems incorrect. And to the extent they argue that the Wong Kim Ark case was wrongly decided, I disagree with that too. What I agree with them about is that newborn children of illegal immigrants do not necessarily have a constitutional right to birthright citizenship. It is very important not to get legal immigrants mixed up with illegal immigrants.