Tuesday, September 15, 2015

Anchor Babies: Anchors Aweigh? Or Away?

This post is the first of a series addressing the "anchor baby" or "birth right citizenship" controversy.

Donald Trump opposes the constitutional right of children born in the United States to parents illegally present here to claim status as American citizens based on the mere fact of their birth here:
I don't think they have American citizenship and if you speak to some very, very good lawyers -- and I know some will disagree, but many of them agree with me -- and you're going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell.

Trump is not alone in his views. Radio host and author, Mark Levin, has staked out a view that so-called “anchor babies” do not have US citizenship, and could not obtain such citizenship unless and until Congress enacts a law so providing:

Lindsey Graham, South Carolina’s senior US Senator, and a competing candidate to Trump for the Republican presidential nomination, explained his views opposing “birth right” citizenship on Greta Van Susteren’s program on Fox News:
I'm looking at the laws that exist and see if it makes sense today. Birthright citizenship doesn't make so much sense when you understand the world as it is. You've got the other problem, where thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so that child will become an American citizen, and they broke the law to get there. We ought to have a logical discussion. Is this the way to award American citizenship, sell it to somebody who's rich, reward somebody who breaks the law? I think we need to look at it really closely.

When “anchor babies” are the focus of political debate, it is often the case that a subtext is present, a subtext of mushrooming welfare program costs. In fact, however, “anchor babies” are only a problem to the extent that the laws of the United States, particularly immigration laws, and the laws of the States, particularly public benefit program laws, allow them to be.

Here is the basic notion, well represented by the moniker “anchor baby:”

A pregnant woman, whether documented or not, gives birth within the United States. The child born to her, under the Constitution and federal statute law, has status as an American citizen from birth. Thereafter, by the fact of their child’s citizenship, its parents assert the rights of their American citizen baby (a) to have the benefits available to any American citizen, and (b) to have their parents filial support and presence here.

Citizens from birth do not require permission from States or the federal government to assert or to enjoy their State and federal statutory and constitutional rights. Others – born elsewhere – must follow the legal naturalization process to gain status as citizens and lay claim to such prerogatives. Those naturalized citizens, moreover, can have their status as citizens stripped from them. No provision of US law, statutory or constitutional, rightly empowers the government to involuntarily strip a natural born citizen of their status as American citizens.

The most notorious instances in which naturalized citizens were stripped of citizenship involve individuals that immigrated to America following World War II. John Demjanjuk lost his status as a naturalized citizen after the Department of Justice concluded that he had lied about his identity to hide his role as a Nazi camp guard at the notorious Sobibor concentration camp. Demjanjuk was deported, stood trial on charges related to his alleged role at Sobibor, in Israel, where he was convicted, and then granted a reprieve, and in Germany, where he was convicted of his acts, and where he died while his appeal from that conviction was pending.

Although in dispute, the costs associated with recognizing the status as natural born citizens for so called “anchor babies” does appear to be a principal concern for those that propose that recognition of birthright citizenship for “anchor babies” must end. I am not an economist. I am not even an armchair economist. Here, however, are what appear to me to be the two leading perspectives on this aspect of the “anchor babies” dispute:

Birth right citizenship for anchor babies inflicts substantial costs on American taxpayers.

Birth right citizenship for anchor babies provide substantial benefits to the American taxpayer.

It seems certain that both positions cannot, at the same time be correct. On the other hand, both may, in different senses, be correct. If one has been discipled on the writings of Frederic Bastiat, then they would likely conclude that the imposition of “new harms” (the accruing additional costs in public benefit programs resulting from the births of entitled “anchor babies that must be born by the taxpayers) will not work in any way to produce a basis for stable economic growth.

In a future post in this topic area, I will delve more into balancing the “costs” of “anchor babies” with the “benefits” of them. In this first entry, though, there are larger questions.

Is the elimination of “anchor baby” status a viable solution to issues of costs? If not, what other changes in law are viable and would address cost issues?

Two provisions of law afford children born in the USA status as citizens by the bare fact of their birth here. One provision is found in the Fourteenth Amendment. That provision states:
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.

The other provision is found in federal statute law. It states:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

These two provisions are quite similar, with a few important distinctives:

Fourteenth Amendment Citizenship
  ... is sourced in the US Constitution
  ... applies to all “persons born ... in the United States”
  ... who are “subject to the jurisdiction thereof”
  ... was proposed by Congress to the States
  ... was ratified by the States
  ... can only be amended or repealed by a subsequent constitutional amendment
  ... and is irrevocable but alienable.

On the other hand

Federal Statutory Citizenship
  ... is sourced in federal statute
  ... applies to all “person born in the United States”
  ... who are “subject to the jurisdiction thereof”
  ... was enacted by the Congress without action by the States
  ... was not ratified by the States
  ... can be repealed or amended by Congress, and can be declared unconstitutional by courts
  ... is both revocable and alienable.

As the foregoing comparison clarifies, there are two essential differences between birthright citizenship granted by the Constitution, and birthright citizenship granted by federal statute law.  First, whether citizenship is a revocable condition varies between the two. Second, the means by which the citizenship grant mechanism was adopted and by which it may be amended or removed. These differences may not define the terms of a debate over “anchor babies,” but they do define the boundaries within desired changes may be obtained.

The fact that “birth right citizenship” is endowed by operation of the Constitution, as well as by federal statute law, bears substantial significance in any search for solutions to the problem of “anchor babies.” Any fix or solution must address, not only the statutory source of citizenship, which may be provided by congressional action with presidential concurrence or over presidential veto, but also the constitutional source of that citizenship. Constitutional grants of citizenship can only be amended by amending the Constitution. In fact, that duality may mean that a solution is doomed to fail absent appropriate calculations about both sources of birth right citizenship.

Now, if we, as a People, do reach a consensus that we have a problem with all the sequelae that follow after “Anchor babies,” and we start to talk about solutions, the mechanisms by which citizenship was acquired becomes important for an additional reason. If citizenship was acquired as a constitutional right then any solution must include such amendment of the Constitution as appropriately resolves the issues.

Because that question, the dispute over whether acquiring citizenship by birth, reflects a constitutional endowment hangs over the larger questions of whether “anchor babies” really constitute any sort of problem, that constitutional question really should be resolved at the beginning of the discussion, before we descend too far into the garden plot of solutions.