Arizona to Challenge Birthright Citizenship and the Fourteenth Amendment?

Section 1 of the Fourteenth Amendment provides 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."  This provision of one of the critical Reconstruction Amendments was designed to overrule Dred Scott v. Sanford (1857), the controversial decisision that denied U.S. citizenship to a freed slave and contributed to the Civil War.  In United States v. Wong Kim Ark (1897), the Supreme Court held that a person born in the United States, whatever the immigration status of his or her parents, is a U.S. citizen under the Fourteenth Amendment.

For the most part, scholars are firm suporters of the birthright citizenship rule under the Fourteenth Amendment.  Peter Schuck and Roger Smith's 1985 book Citizenship Without Consent is noteworthy because it is one of the few scholarly pieces that suggests that Congress might be able to eliminate birthright citizenship without a constitutional amendment.  It also generated a firestrom of controversy and considerable academic criticism (and few defenders).

Over the last few months, the state of Arizona (and here) has thrown the equivalent of a two year old's fit about immigration.  The state legislature first passed Senate Bill 1070, requiring local police to enforce the federal immigration laws; the law drew vociferous cries of foul from across the country and claims that it would promote racial profiling of Latinos, a long time problem in Arizona (and the nation).  Next, the Arizona legislature went after ethnic studies programs -- again drawing the ire of Latinos and others nationally.

Now, the state of Arizona wants to go after a constitutional icon -- it wants to challenge birthright citizenship under the Fourteenth Amendment by denying birth certificates to "anchor babies," i.e., children of undocumented immigrants.

The attack on birthright citizenship unfortunately is nothing new.  Congress regularly sees bills of dubious constitutionality that would eliminate birthright citizenship.  Such bills to this point have gone nowhere.  This also has been an issue in the states.  In 2008, for example, a group of Arizonans unsuccessfully sought to get an initiative on the ballot that would have denied birth certificates to the chidlren of undocumented immigrants. 

Arizona State Senator Russell Pearce, who favors just about every anti-immigrant proposal out there (including Arizona's SB 1070), supports the new proposal to deny birth certificates to children of undocumented parents born in the United States.  The almost certain unconstitutionality of any such measure (as well as SB 1070) does not deter Senator Pearce and his kindred spirits.

Supporters of the anti-birthright citizenship bill want to pass a law, spark a legal challenge, and, if necessary, take the case all the way up to the U.S. Supreme Court.  In certain respects, this may be little more than a pipedream -- immigrants over the last few years, including earlier this week in Carachuri-Rosendo v. Holder have won the vast majority of their cases before the Court as the immigration laws generally have become too far "over the top" even for this relatively conservative Supreme Court.

Russell Pearce and the supporters of anti-immigrant legislation know that the measure, like SB 1070, will be challenged -- perhaps successfully -- in the courts.  They know that the defense of the measures will cost many thousands of dollars, money that the strapped state budget will find it difficult to pay.  Still, the anti-immigrant front keeps coming back for more.  Why?

If it comes to fruition, the Arizona anti-birthright citizenship proposal would have similar impacts as California's Proposition 187, a 1994 initiative that would have denied access to undocumented students to public K-12 education in contravenbtion of the Supreme Court's decision in Plyler v. Doe (1982).  Although a federal court invalidated Proposition 187 as an intrusion on the federal power to regulate immigration, the law "sent a message" to the federal government that it had to do something about immigration.  The Clinton administration unquestionably got the message.  It 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.  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.

The shocking developments in Arizona, including the Arizona anti-birthright citizenship proposal, have already sent a message to the U.S. government, as well as the nation as a whole.  President Obama has deployed more than 100 National Guard to the U.S./Mexico border.  It is likely that more border enforcement is on the way.  The Arizona measures also have drawn a line in the sand on comprehensive immigration refoirm, which was long ago promised by Candidate Obama but is not on the horizon.

So, pardon me, if I do not crow as a law professor that the Arizona anti-birthright citizenship law is clearly constitutional and will likely be struck down by the courts.  If the law is passed, damage will be done.  Immigrants will be hurt.  Latinos will too.  In the end, we as a national community will be damaged.  

KJ