For another, the Constitution gives Congress the power to legislate as to citizenship (U.S. Const. art. I § 8 cl.4). It's done so a few times over the past 200 years, most recently with the 1952 Immigration and Naturalization Act, with big post-9/11 changes in 2003 (8 U.S.C. § 1401 et seq.). The Supreme Court has historically given Congress, INS, Homeland Security, and ICE, the BIA, and Customs and Border Protection -- as opposed to the States, the Executive Branch, or the Supreme Court itself -- huge deference in immigration and citizenship matters for two reasons. First, the Constitution is very clear that Congress has full and sole authority to deal with immigration and citizenship. Second, immigration and citizenship are national security concerns. This second factor has long influenced Supreme Court decisions, even pre-9/11, such as in cases where visitors were denied visas because of their real or perceived connections to Communists; see, e.g., Kleindienst v. Mandel, 208 U.S. 753 (1972).
Changing the details about how immigrants can obtain visas or become citizens happens pretty frequently, but it's always done by act of Congress, or via an Executive Branch agency to which Congress has given the authority to do so. But changing the basic criteria for what makes a person a citizen is a question that's so fundamentally Constitutional that, when Congress wrote the Immigration and Naturalization Act of 1952:
The following shall be nationals and citizens of the United States at birth:. . . they totally cribbed their language directly from the 14th Amendment:
(a) a person born in the United States, and subject to the jurisdiction thereof
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.To re-iterate, then. By the Constitution and by federal statute (and likely by various agency regulations as well), being born in the U.S., regardless of the status of either of your parents, makes you a U.S. citizen.
My point, and I do have one, is that meddling in the matters of re-defining citizenship is not only something that shouldn't be taken lightly, but as a practical matter it's also something that simply cannot be taken lightly. It'll take a Constitutional amendment to change the definition. But wait!
Bills to challenge the fact that citizenship is granted as a birthright in this country have been perennial nonstarters in Congress, although the current legislation has 91 co-sponsors. As with other issues surrounding immigration, however, some state legislatures still might act, if only in hopes of bringing this issue before the Supreme Court (NPR).Now, to get the easy snark out of the way: Aren't these the same types of people who complain about so-called activist judges legislating from the bench?
For another -- well, no really, it's all about the easy snark. Passing a state law just to see what the Supreme Court will do with it is a colossal waste of time and grief. States are not allowed to legislate about American citizenship. Don't believe me? Well, do you have a passport? Who issues passports, your state or the State Department? When you return from a trip abroad, do you go through a state customs control or a U.S. customs control?
Dig out your Constitution again, folks: the Supremacy Clause (U.S. Const. Art VI, § 2) is pretty darn clear about it, no matter where you fall on the spectrum of constitutional originalism versus textualism versus strict constructionism versus living constitutionalism. If you want to re-define or eliminate birthright citizenship, you've chosen a hard row to hoe, 'cause it'll take a constitutional amendment to see it done.
I'll wrap up with a few questions about implementation and enforcement. Right now, your state-issued birth certificate is proof of your citizenship. It's a sine qua non for obtaining a passport. While a passport is sorta the international proof of citizenship, you don't need one just for living and working in the U.S. That is, your passport is proof of American citizenship as to the rest of the world; your birth certificate is proof of American citizenship as to the federal government. But we're gonna run into some circular problems if your birth certificate, proving birth in a U.S. state, is no longer proof of citizenship sufficient to include in an application for a passport. In short, which will be enough to prove citizenship? Does this make your birth certificate meaningless, or your passport, or both?
So the deal, if we eliminate birthright citizenship, would be that you can't be an American unless your parents are American. (Straw poll and a quick aside: how many of my readers would not be American under such a rule? Both my parents are naturalized Americans. Would this change retroactively deny my citizenship, or could I apply for amnesty?) To get a citizenship-proving document, will a person have to prove her parents' citizenship? What if only one parent is a citizen? What if they're not married? What if the one citizen parent is dad (yes, it makes a difference)? What if there's only one parent at all, whether mom is a single mother by choice, or dad's not available for any number of reasons? What if the only parent is dad? What if both parents are dead, or cannot be found, or are stateless?
Would you have to get your birth certificate from the federal government now, since a state cannot issue a national identification document? Won't this lead to something like a mandatory ID card issued by the federal government? How does eliminating birthright citizenship make for less government, government that's less intrusive?
You can't propose eliminating birthright citizenship until you address these questions, and I'd like to see some intellectually honest answers to them.
Posts
No comments:
Post a Comment