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Constitutional obstacle course: the challenges facing the birthright citizenship bill backers

In a packed Arizona Senate Judiciary Committee room on Feb. 7, a panel of lawmakers took part in three hours of compelling debate and testimony that sought to illuminate the meaning, history and legal intricacies of U.S. citizenship.

But the lawmaker who spoke least asked the question that focused most clearly on the difficulties ahead for backers of the so-called birthright legislation: If Arizona passed SB1308 and SB1309, is it certain that a case would reach the U.S. Supreme Court on the fundamental question of whether children born here to undocumented-alien parents are entitled to U.S. citizenship, or could the court decide constitutionality on other grounds?

The question came from Sen. Steve Yarbrough, a Republican from Chandler. Yarbrough won’t say if he supports the two bills that make up the birthright legislation, and the fact a staunch Republican is not enthusiastically expressing support is a bad omen for its fate.

The  Arizona Legislature birthright zealots — who need to persuade another state to join their crusade, a Democrat-controlled U.S. Senate to approve a two-state compact formed to challenge the traditional interpretation of the 14th Amendment to the U.S. Constitution, and the U.S. Supreme Court to rule on an issue that is not even explicitly mentioned in one of the two bills — could not even get SB1308 and SB1309 through the Senate Judiciary Committee, on which Republicans outnumber Democrats six-to-two.

But even if the bills’ backers succeed in the Arizona Legislature, and even if they find another state to join in their compact, and even if the U.S. Senate defies logic by approving the compact, and even if the U.S. Supreme Court agrees to rule on the constitutionality of the laws, the justices could issue a decision that falls far short of overturning more than a century of U.S. policy.

In other words, despite the tumult it creates and the raw emotions it evokes, the birthright legislation has little chance of preventing a child born to illegal aliens from automatically becoming a U.S. citizen.

Since the 1868 passage of the 14th Amendment, U.S. policy has been that, with extremely limited exceptions, a child born in the United States becomes a U.S. citizen, regardless of his or her parents’ citizenship.

Nevertheless, the birthright-busters, frustrated by the federal government’s refusal to solve illegal immigration, say the two bills would leave the U.S. Supreme Court with only one topic to resolve: Who exactly is an American citizen?

A crowd of foes and supporters of the birthright bills packed a Senate hearing room to hear the clash of philosophies. (Photo by Ryan Cook/RJ Cook Photography)

A crowd of foes and supporters of the birthright bills packed a Senate hearing room to hear the clash of philosophies. (Photo by Ryan Cook/RJ Cook Photography)

What will the U.S. Supreme Court rule on?

The problem, the bills’ critics assert, is that the Supreme Court really doesn’t have to answer that question. Rather, in the event that a challenge to the legislation gets that far, the justices could completely sidestep the issue and instead narrowly decide on whether a state can create and define its own citizenship.

What will trip up the anti-birthright crusade, said Sen. Adam Driggs, a Republican from Phoenix who practices immigration law, is the way the legislation is written.

“I would say it’s creative. It’s clever. It’s ambitious,” he said. “(But) the language of the bill only claims to deny Arizona citizenship. They say they want their day in court. Well, if you take a bill that denies Arizona citizenship to the Supreme Court, all the Supreme Court will act on is whether you could create a separate Arizona citizenship.”

That’s why opponents like Driggs say the courts will refuse to tackle the birthright legislation. That is, if it doesn’t deal with U.S. citizenship, why bother?

For supporters who say the 14th Amendment has been erroneously applied for far too long and birthright citizenship has become a magnet for illegal crossers, the attempt still must be made.

John Eastman, the Donald P. Kennedy chair at Chapman University School of Law in Orange, Calif., said Driggs’ reading of the legislation is confused.

True, SB1309 deals with Arizona citizenship, but Eastman said the 14th Amendment defines a state citizen and a U.S. citizen synonymously. The amendment 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.”

“So if we establish that Arizona citizenship requires birth and (being) subject to the jurisdiction, then by definition U.S. citizenship would as well,” Eastman said.

The citizenship of children of illegal aliens is the issue that matters, Eastman said, adding: “We have tried to draft the bill so that that is the only question presented by this piece of legislation.”

Eastman also contended the bill doesn’t create an Arizona citizenship. Both American and state citizenships are derived from the 14th Amendment; the proponents’ goal is to define what the floor is for automatic citizenship under the Constitution, he said.

But even supporters of the birthright bills agree it’s an uphill climb.

Setting up litigation is not as easy as teeing up a golf ball, said Sen. Andy Biggs, chairman of the Senate Appropriations Committee, which plans to hear the birthright legislation on Feb. 15. The committee is expected to pass the two-bill proposal.

“It’s like receiving a snap from a long snapper in football in a hurricane-force gale, and that ball is coming in there and you’re trying to catch it and put it down so your kicker can kick it through. That’s how hard it is to set up a perfect case for a court to rule on a constitutional issue like this,” Biggs said.

Andy Hessick, an associate professor at ASU’s Sandra Day O’Connor College of Law who teaches about the U.S. Supreme Court in American politics, said there’s no telling how the court would act.

“Just off the top of my head, I think there are three ways the court could resolve the case without resolving the meaning of the 14th Amendment,” he said.

According to Hessick, the court could say the existing congressional law on citizenship pre-empts the state law. Or, justices could say it’s the courts—not the states—that define what the 14th Amendment means, striking the birthright legislation on the grounds that Arizona has assumed powers it doesn’t have.

Finally, the court could simply declare that the Arizona Legislature is not the proper body to interpret the amendment, as Section 5 of the 14th Amendment expressly arrogates to Congress the power to enforce its provisions.

“Of course, it’s possible that the court could still rule on what the meaning of the 14th Amendment is,” he said. “But it’s by no means a guarantee.”

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Will U.S. Supreme Court take the case?

As introduced, SB1309 defines an “Arizona citizen” as a person who is born in the country and is “subject to the jurisdiction” of the United States.

The bill proceeds to say that being subject to the jurisdiction of the United States has the same meaning as the phrase that is found in the 14th Amendment, which has been widely interpreted to mean all children born within the geographical boundaries of the United States is an American citizen, save in a few cases, such as the offspring of foreign diplomats.

But the correct interpretation, the bill argues, is that citizenship extends only to a child with at least one parent who owes “no allegiance” to any foreign country, or to a nation-less child. It further qualifies owing “no allegiance” to another nation to mean a person who is a U.S. national, an immigrant who is a permanent resident or someone who is not a citizen of another nation.

In short, the legislation directly ties U.S. citizenship to the citizenship of parents.

The protagonists in this complex legislation all agree that litigation is inevitable if Arizona passes the measure.

Many also say there’s a very good chance the high court will take up the case.

Hessick’s view: “The thing that people care about is whether it goes to the U.S. Supreme Court, and I think that there is a pretty good chance that it would.”

Will Congress say yes to the two-state compact?

SB1308, meanwhile, directs Arizona’s governor to enter into a compact with other states to essentially create two sets of birth certificates, one for children whose parents are here illegally, and another for those whose parents are citizens or who are in the country legally.

Proponents say the strategy is to get more states to join the cause so it becomes more compelling for the U.S. Supreme Court to tackle the issue of citizenship.

This compact hinges on two requirements. First, obviously, another state must join in the effort. Second, Congress must give its consent, as Article 1, Section 10 of the U.S. Constitution requires for multi-state compacts.

But this may be where an ingenious idea collides with reality. With Democrats in control of the U.S. Senate, Congress is unlikely to allow a patchwork of states to distinguish which children are subject to the jurisdiction of the United States and which ones are not.

Tension between the states and the federal government over where states rights end and where federal control begins has existed since the nation was born. Federal inaction on immigration only served to heighten that natural tug-and-pull in the past few years.

But even with congressional sympathy toward states rights advocates, the federal government has consistently resisted attempts by the states to assert control over immigration matters.

Will another state join Arizona? The probable answer is yes.

But what happens if no other state joins Arizona in the compact or if Congress doesn’t give its consent?

“We’re out of luck,” said Sen. Ron Gould, R-Lake Havasu City, the legislation’s primary sponsor.

Rep. John Kavanagh, R-Fountain Hills, the author of identical legislation in the House, said if the compact fails, Arizona would simply run the proposal to create two sets of birth certificates on its own.

If the goal is to get to court, why not do that right away?

“Professor Eastman and the people who crafted this felt that the best way to get to the Supreme Court would be to demonstrate that this is a multi-state initiative,” Kavanagh said.

Will it pass in Arizona?

After the Feb. 7 meeting, when Gould decided to hold the bills in the Judiciary Committee because of the lack of yes votes, backers of the birthright bills promptly changed strategy.

The two measures were pulled out of the Judiciary Committee and sent to the Appropriations Committee, where Senate President Russell Pearce said the bills have the support to pass.

Pearce said he has enough support to get them out of the 30-person chamber.

But as the Feb. 7 setback showed, nothing is certain.

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