Is Birthright Citizenship Challenge “Doomed”? Let’s Hope So

Yet another front has opened in the battle over illegal immigration, this one involving birthright citizenship. According to today’s New York Times and other news outlets, Republicans at the state and federal level are gearing up to re-open the question of whether children born in the United States to parents who are here illegally should be granted automatic citizenship under the 14th Amendment to the U.S. Constitution.

James Ho makes a strong case in this morning’s Wall Street Journal that the 14th Amendment as written after the Civil War was intended to include the children of resident aliens whatever their legal status. The former solicitor general of Texas, Ho describes a series of Supreme Court decisions since then that have consistently upheld the principle that birthright citizenship applies to the children of illegal immigrants. He offers this sobering advice to those who want to retest the case in court:

Opponents of birthright citizenship say that they want nothing more than a chance to relitigate the meaning of the 14th Amendment. But if that is so, state legislation is a poor strategy.

Determining U.S. citizenship is the unique province of the federal government. It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.

At a Cato Hill Briefing event in October, I spelled out additional reasons why the principle of birthright citizenship has served our nation well since the Civil War amendments. Attorney Margaret Stock reviews the legal and constitutional arguments underpinning birthright citizenship, while I examine the practical policy arguments for not tampering with the established interpretation. (My segment starts at the 25:11 mark.)

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