After a rocky start, the birthright legislation finally received committee approval on Feb. 22, overcoming the initial hurdle before the full Senate can debate and vote on the measure that is stirring so much raw emotion and is solidifying Arizona’s reputation as ground zero in the struggle to confront illegal immigration.
By an 8-to-5 vote that hewed nearly along party lines, the Senate Appropriations Committee gave the green light to a two-bill proposal whose ultimate aim is to get the U.S. Supreme Court to revisit the issue of American citizenship, though critics question whether the judiciary would actually answer this exact issue and not dismiss the legislation on some other grounds.
The birthright legislation is but one of several measures emanating from Arizona that attempt to fill the void left by the federal government’s refusal to permanently solve the problem of illegal immigration. Legislators on both sides of the debate have been clamoring for a final fix to this complex problem.
What sets the legislation apart is its ambitious goal of redefining who is an American. And while backers argue that the birthright citizenship has become a magnet for illegal immigrants, critics say the bill goes after children and potentially creates a class of residents in perpetual limbo about their legal status.
As in a previous hearing, backers and critics offered their competing interpretations of the meaning of the 14th Amendment to the U.S. Constitution, which is widely understood to confer automatic citizenship on all children born in the United States, regardless of their parents’ legal status.
The debaters also argued over whom “subject to the jurisdiction” of the United States exactly extends to.
“If the 14th Amendment were clear, we wouldn’t be here,” said John Eastman, the Donald P. Kennedy chair at Chapman University School of Law in Orange, Calif., who helped draft the legislation.
Backers said the phrase has a broader meaning than mere presence or the happenstance of birth. They said a foreigner who is touring Arizona would have to follow the country’s driving laws, but he or she cannot be compelled to serve in the U.S. military; hence, the tourist is not “subject” to U.S. jurisdiction in that broader sense.
And this broader sense is the correct interpretation of the meaning of the 14th Amendment, they said.
But opponents said the plain language of the 14th Amendment is clear, and case law supports their interpretation that children born within the boundaries of the country, save a few exceptions such as the children of diplomats, are American citizens.
“In the actual application of the law, it is very clear: If you’re born on American soil, and you’re not the child of a (foreign) diplomat, you are an American citizen,” Sen. Kyrsten Sinema, D-Phoenix, said.
Sinema and other critics also flatly rejected the idea that the “jurisdiction” phrase has two meanings. They cited the U.S. Supreme Court’s opinion in Plyler v. Doe, in which the court rejected the “constricting construction” that those who entered the country illegally are not “within the jurisdiction” of a state.
Opponents also pressed what the bill would mean for holders of temporary visas and for dual citizen, and they were unimpressed by the answers they heard.
But just as in the previous hearing, lawmakers got stuck debating concepts of citizenship, the original discussions surrounding the 14th Amendment and what this legislation means for Americans who hold dual citizenship.
The discussion also delved into how the federal government has abdicated its job to secure the border, a point none of the debaters disagreed with.
Noting the federal government’s refusal to solve the illegal immigration problem permanently, Sen. Rick Murphy, R-Glendale, asked: “At what point do we give up on the federal government and starting doing action ourselves. … How many years do we wait? Is there a limit?”
As introduced, SB1309 creates and defines an “Arizona citizenship.”
The second measure, SB1308, will direct 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.
The two measures were previously held in the Senate Judiciary Committee after that panel’s chairman and the bill’s primary author, Sen. Ron Gould, R-Lake Havasu City, concluded he didn’t have the votes to get them through.
Senate President Russell Pearce, who is shepherding the bills, decided to reassign the bills to the Appropriations panel, which didn’t disappoint their backers.
Even with the committee’s approval, the proposals still have a long way to go and many more hurdles to overcome.
The legislation’s next step is the Senate Rules Committee, where it should have an easier time passing. Pearce, author of SB1070, chairs this committee.
But the big question is whether the legislation has enough support to survive a full Senate vote.
Another question is how House Speaker Kirk Adams will deal with the two birthright measures once they are sent over to his chamber.
And if the bills pass both houses, Gov. Jan Brewer will ultimately have to decide whether to sign them, let them become law without her signature or veto them. Brewer won’t escape criticisms no matter what she does.