Arizona Republican Russell Pearce, architect of the infamous SB 1070, is getting the old team back together for another effort to exclude undocumented immigrants from his state – Pearce plans to introduce a bill for a state law that would strip US-born citizens of undocumented immigrants of their citizenship.
In an email obtained by the Phoenix CBS affiliate KPHO, Pearce wrote that he plans to “push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes the citizenship of those born to illegal aliens, unless one parent is a citizen.”
Along with Pearce’s restriction on birthright citizenship, he also plans to put forward another legislative proposal – to find a way to require undocumented immigrants to pay for their own public education. Pearce, working with attorney Kris Korbach, said he will propose the bill when the legislative session begins in January.
Under these strictures, the children of undocumented immigrants who were born in the United States would still be considered citizens under federal law, but would lose access to state-administered programs such as education and emergency health care in Arizona, according to the Center for Constitutional Rights attorney Darius Charney.
Charney called the bill “blatantly illegal,” noting that “if Arizona passes such a law it would be clearly unconstitutional.”
The citizenship provision of the 14th Amendment, which states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside,” has its roots in the overturning of the Dred Scott v. Sanford (1857) Supreme Court decision, which denied African-Americans citizenship on the basis that they were “a subordinate and inferior class of beings.”
Until the 14th Amendment was penned, for all other residents in the United States citizenship was granted solely on the common law principle of jus soli, or “place of birth.”
The importance of birthright citizenship in American political rhetoric has had a recent burst – bills challenging the birthright provision for the children of undocumented immigrants surfaced previously in Congress in 1993 and 2005, though they never made it out of committee. And in 2008, a group of Arizona legislators unsuccessfully sought to pass an initiative which would have denied birth certificates to the children of undocumented immigrants.
The issue of birthright was also notoriously challenged by the “birthers,” who believe that Obama’s claim to the presidency is in question because he has not provided adequate evidence that he was born in the United States.
Most recently, key Republicans on Capitol Hill, including previous supporters of immigration reform such as Lindsey Graham (R-South Carolina) and John McCain (R-Arizona), denounced the constitutional guarantee of citizenship under the 14th Amendment.
Ninety-two Congressmen sponsored a bill for a constitutional amendment; it is still in committee, and in April, Rep. Duncan Hunter (R-California) told a Tea Party rally that he supported deporting the children of undocumented immigrants, even if they are citizens.
According to Hunter, “we’re not being mean. We’re just saying it takes more than walking across the border to become an American citizen. It’s what’s in our souls.”
The few changes to the judicial understanding of birthright citizenship have been largely progressive reforms – in United States v. Wong Kim Ark (1897), the Supreme Court ruled that a person born in the United States, regardless of the immigration status of their parents, was a US citizen under the 14th Amendment.
Sen. Howard Jacob (R-Michigan) authored the amendment to the birthright clause introduced in the Senate earlier this year, arguing that the phrase “subject to the jurisdiction thereof” in the citizenship clause excludes undocumented immigrants, who he argues have not complied with the nations laws.
In the most recent cases, such as Plyler v. Doe (1982), which struck down a law attempting to bar undocumented immigrant children from public education, and Rabang v. Immigration and Naturalization Service (1998), in which the court struck down the notion that someone born in a United States territory, in the case the Philippines, was a citizen, the judges have relied on the citizenship clause in the Wong Kim Ark case.
However, the opinion cautioned that the Wong Kim Ark case addressed a very narrow question and, therefore, no expansive meaning should be applied to the phrase “subject to the jurisdiction thereof.”
Though calls from Washington to abolish birthright citizenship have quieted recently, Pearce is committed to keeping the fight alive in his state.
On Tuesday, a US appeals court found that another of Arizona’s restrictive laws, requiring proof of citizenship when registering to vote, violated federal law.
Charney expects Arizona’s citizenship bill to see a similar fate – “what would most likely happen is the Justice Department or private litigants could come in and prevent the bill from coming into effect,” much as they did with SB 1070.
However, points out Kevin Johnson, professor of Law and Chicana/o Studies at the University of California, Davis, it may not be enough for the law not to be passed. In the Clinton era, California’s attempt to pass Proposition 187, a bill that would have denied undocumented students access to K-12 education, was denied, but succeeded in sending a “message” to the administration.
“The Clinton administration … allocated millions of dollars to border enforcement and commenced many high-profile border operations in the Southwest, including Operation Gatekeeper in San Diego and Operation Hold the Line in El Paso,” wrote Johnson. “Congress passed two tough immigration reform bills in 1996, both heavily weighted toward enforcement, and passed welfare reform that denied benefits to legal immigrants as well as undocumented ones.”
This is already something we have seen with Arizona’s laws, Johnson notes – President Obama sent a troop surge to the US/Mexico border, with a larger proportion heading to Arizona.
Victor Goode, an associate professor at CUNY Law School, noted in Colorlines that the Republican leadership themselves do not expect the bill to pass. “In the end, the 14th Amendment debate they’ve stirred is not about constitutional law,” Goode writes. “It’s about electoral politics and the 2010 elections.”