In the view of immigration restrictionists, a simple legal reform would reduce illegal immigration.

All that is required, writes George Will in the Washington Post, is to correct the misinterpretation of the 14th Amendment’s first sentence:

“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.”

Children of illegal immigrants were not part of the 14th Amendment’s coverage, argues Will, since there were no laws in 1868 restricting immigration.

The Suggested Reform Is Not Simple

John Eastman, Dean at the Chapman University School of Law, supports Will’s position.  He outlines three possible paths for changing the 14th Amendment.

The first path is via constitutional amendment.  In Eastman’s view this path is redundant and not necessary.  Second, he suggests Congress could simply pass a statute re-defining the automatic citizenship requirement.  Third, he asserts if a City does not recognize the citizenship of children born to undocumented immigrants, this would force an expedited legal showdown.

Eastman concedes, whichever approach is taken, the federal courts and ultimately the Supreme Court will have to weigh in on the issue.

Other constitutional scholars believe the position advanced by Will is dead wrong.

According to Elizabeth Wydra, Chief Counsel at the Constitutional Accountability Center, the Citizenship Clause was proposed, enacted, and ratified with the understanding that it provided automatic birthright citizenship to children born in the United States to alien parents.

“Providing for birthright citizenship regardless of race, color, or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford,” stresses Wydra, “and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship.”

Provoking a new civil war centering on the 14th Amendment doesn’t seem like a simple reform to me.

Bad Politics, Bad Law, or Both?

When it comes to immigration law, immigration politics is too often the tail wagging the dog.

The discussion over the 14th Amendment is no different.   Utilizing imagery of illegal immigrants capsizing the American ship, restrictionists seek to impose their political agenda on our nation’s immigration laws.

Although Will relies on the work of Lino Gragli, a law professor at the University of Texas, it’s hard to overlook the political basis of Gragli’s position:

“A parent from a poor country . . .  can hardly do more for a child then make him or her an American citizen, entitled to all the advantages of the American welfare state.”

Some immigration opponents take it a step further. They assert many immigrants have grander plans for their unborn children.  The unborn  children, as U.S. citizens, will turn around and immigrate their parents.

A reality check is needed here.

On the one hand, few would argue the United States is not a special place to live.

On the other, in my 17 years as an immigration lawyer in Southern California, I’ve never met anyone who came here to obtain citizenship through an unborn child.  In all likelihood, this reason may motivate some immigrants – but the true figures are far, far less than the political rhetoric suggests.

For such a plan to be executed requires extensive long term planning.

And a lot of luck.

A wait of 21+ years is necessary before an unborn child would be eligible to petition his or her parent for lawful immigration status.  That’s only the first step.

At the second step, months to years later, the parents would have to return to their home country for their green card interview.  Under current immigration regulations, due to their long period of unauthorized residence, the parents would be subject to a lifetime bar preventing them from ever returning to the U.S.

The difficulty of surviving in the U.S. without immigration documents for over two decades, coupled with the legal barriers to obtaining permanent resident status,  belies the simplicity of immigration opponents’ anchor babies babble.

The more common reality is love just happens, usually unexpectedly.  Having a child born in the United States is normally a byproduct of living here, not vice versa.

Immigrants enter the U.S. for a host of reasons.  To name a few, persecution, economic opportunity, religious freedom, as well as poverty.

If fixing our broken immigration system is the objective, eliminating birthright citizenship is not the answer.  The net effect would increase, not decrease, immigration problems.  A new underclass of children born here but not entitled to live here or anywhere else would be created.

Political aims tend to be short-sighted.  Our legal system needs more durable standards.