MYTH: UNCONDITIONAL CONSTITUTIONAL BIRTHRIGHT CITIZENSHIP

(Paul Loy Hurd, Attorney At Law; Monroe, Louisiana)
In today’s world of coyote transportation of illegal aliens – young and old – to America, and the baby booming travel business based upon: “See America; Have a baby; Leave with a Little Bundle of Joy and a Big Bundle of American Benefits!!!”, the debate over alleged constitutional birthright citizenship is front and center of the national crisis of illegal immigration. This debate, the “Anchor Baby Debate,” erupted with the pronouncement of Donald Trump’s illegal immigration solutions.

Thedestruction of wages for working, destruction of national sovereignty and national self determination, and the ballooning entitlement costs all are accelerated with this immigration lawlessness. The voters of America are focused on the “Anchor Baby Debate”, looking for solutions to illegal immigration for economic reasons, and a commitment to the principle that laws are made to be followed.
Central to the illegal immigration crisis is the myth of “birthright citizenship” that many claim
exists in the Fourteenth Amendment. This constitutional puffery is much more about the political benefits bestowed on big government supporters who promote unrestrained illegal immigration and pseudo-citizenship under the Fourteenth Amendment to expand the government dependent population and voters. See, Ann Coulter’s new book “Adios America” (Regnery Publishing, 2015) and “Birthright Citizenship: Fundamental Misunderstanding of the Fourteenth Amendment,” by Hans A. Von Spakovsky, FoxNews.com, January 14, 2011

This politically convenient, constitutional theory of pseudo-citizenship seems to be simply: “If any member of a family is a citizen; then all  members of the family are citizens.” The Anchor Baby comes first, then you get pseudo citizens by the family bunch. The “Anchor Baby” crisis must be addressed if citizenship in America is to retain its own sovereignty to decide its own constitutional way.
So, what does the Constitution and federal law have to say on birthright citizenship. Luckily,
the Fourteenth Amendment’s “birthright citizenship” provision is clear and is comprised of a two part test. Section 1 of the Fourteenth Amendment provides:
“All persons born . . . in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.”
So for purposes of determination of constitutional citizenship, those persons born in the United
States are “citizens” if, and only if, (1) their physical place of birth is the United States, and (2) when born, the person is “subject o the jurisdiction of the United States” in the context of national citizenship.

The Supreme Court has recognized and maintained the dual requirement of the location of physical birth, coupled with the requirement that the person have sovereign loyalty and allegiance to the United States, to be its citizen. The Supreme Court has provided several examples that the constitutional requirement of sovereign loyalty is as a prerequisite to constitutional birthright citizenship.

The Supreme Court in 1884, declared that the “the evident meaning of the [requirement to be subject to the jurisdiction of the United States] . . . is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk v. Wilkins, 112 U.S. 94, 99 (1884). Again, in 1873, the Supreme Court, in the Slaughter-House Cases (Slaughterhouse Cases, 83 U.S. 36 (1873) affirmed that the “jurisdictional requirement” in the Fourteenth Amendment mandates that the child’s parents be U.S. citizens for the child to be an American citizen.

The Court holding specifically that persons born in the United are not citizens if they are, at birth, “. . . children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Then, In 1898, the Supreme Court handed down the Wong Kim Ark case, which recognized birthright citizenship to a person born in the United States to
legal aliens with legal, permanent residency who were working in the United States. See, United
States v. Wong Kim Ark, 169 U.S. 649 (1898). In the Wong Kim Ark case, the Supreme Court, held
that the child born to alien Chinese lawfully present in the United States did receive constitutional birthright citizenship.

This case gives the most implied support, in selected texts, for the right of
citizenship for aliens whose children are born in the United States. However, the facts of the Wong Kim Ark, presenting lawfully present, permanent resident, aliens as the parents, offers little support for the constitutional argument that children of illegal aliens present unlawfully in the United States are citizens, and offers no logical support for the false assertion of citizenship in the contest of those born while a offspring of the “Anchor Baby” business. These constitutionally significant differences between legally present aliens and illegally present aliens is conveniently ignored by today’s promoters of open citizenship to aliens at birth.
Finally, and equally important to ending the “Anchor Baby” crisis, it is important to also know
that the Fourteenth Amendment, in Section 5, grants to Congress the authority to define citizenship in the United States. See, 8 USC 1401. This authority is comprehensive. For example, Congress has denied citizenship to children born outside the country to a non-US citizen mother, unless the mother is married to the U.S. father or the father acknowledges the foreign born child and that child is taken into the home of the U.S. father in the United States. See, 8 USC 1409.

And the denial of citizenship to these children of U.S. citizens not present in the United States has been upheld as constitutional by the Supreme Court. See, Tuan Anh Nguyen v INS, 533 US 53 (2001). Once again in Tuan, the Supreme Court recognized expressly that Congress is well within its authority to make the necessary distinctions to apply the citizenship authority of the Fourteenth Amendment as it deems prudent, declaring again, “this Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”

Therefore, the “Anchor Baby” crisis is clearly within the authority of Congress and the
President to resolve by passage of a federal law that eliminates the mythical practice of pseudo birthright citizenship to children of illegal aliens present in the United States. See, bill by Senator David Vitter (Louisiana) (www.govtrack.us/congress/bills/114/s45/text); S. 45: Birthright Citizenship Act of 2015. No amendment to the constitution is necessary to resolve this illegal immigration crisis. As a beginning and example, the following amendment to 8 USC 1401, creating sub-sections 2 and 3, will solve the “Anchor Baby” crisis:

2. a. Notwithstanding any provision of section 1 hereof (8 USC 1401.1), or
any other provision of law, for purposes of determining whether a person is a national
and a citizen of the United States based upon the person’s birth in the United States
under applicable law and under the Fourteenth Amendment to the Constitution of the
United States, a person born within the United States on or after January 1, 2015 shall
not be deemed to be “subject to the jurisdiction of the United States” under applicable
law nor under the Fourteenth Amendment to the Constitution of the United States, and
therefore said person so born shall not be a national or a citizen of the United States
based upon said persons place of birth, if neither parent is a citizen of the United States,
nor is an alien lawfully admitted and present in the United States as a permanent
residence of the United States, nor an alien performing active service in the armed
forces, on the day of the person’s birth.
b. For purposes of determining whether a person is a national and a citizen
of the United States based upon the person’s birth in the United States under applicable law and under the Fourteenth Amendment to the Constitution of the United States, a
person born within the United States on or after January 1, 1982, but prior to January
1, 2015, who (i) has never been deported or lawfully removed from the United States,
(ii) has never been convicted of a felony, and (iii) has been a continuous resident within
the United States for at least fifteen years between January 1, 1982 and January 1,
2015, shall be deemed born “subject to the jurisdiction of the United States” under the
Fourteenth Amendment, provided that said person, (a) submits an application for
Fourteenth Amendment birthright citizenship recognition under this subsection 2.b (8
USC 1401.2.b.) before January 1, 2017, (b) submits therewith clear and convincing
evidence that the person meets the requirements of (i), (ii) and (iii) herein, (c) passes all
required background checks, knowledge tests and files all required tax returns for their
period of residency, and (d) files a declaration of sole sovereign allegiance to the United
States and renounces citizenship and sovereign allegiance to all other nations.
c. The amendments made by subsection 2(a) and (b) shall not adversely affect the
citizenship or nationality status of any person born before the date of the enactment of this Act,
and are enacted pursuant to the Congressional powers created under Section 5 of the
Fourteenth Amendment as remedial clarification of the application of the requirement that only a person born “subject to the jurisdiction of the United States” receives citizenship upon birth in
the United States.

This statutory amendment, duly adopted will end the Anchor Baby crisis, will create an opportunity for hardworking, law abiding persons born in the United States who have resided in the United States for more than fifteen years if they affirm their sole allegiance to the United States. These two statutory provisions will solve the ambiguous citizenship status of those persons born to illegal aliens within the United States who have remained resident of the United States for fifteen plus years, and otherwise are legal, tax paying residents. Together these provisions eliminate yesterday’s citizenship ambiguities, and eliminate much of the future impetus for illegal immigration that is occurring in today’s United States. With this statutory adoption, a quick trip in to birth a child, nor the extended stays of illegal aliens in the future will yield a bundle of American entitlements against the laws of the United
States. A problem constitutionally, statutorily and fairly solved.

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