A proposed ballot initiative to refuse United States citizenship to children born of foreign parents residing in Arizona was registered with the Secretary of State’s Office on Nov. 30.
The measure is necessary to stem the rapidly growing illegal immigrant population and force the government’s resistant hand into action, said Della Montgomery, chairman of Birthright Citizenship Political Committee.
“We just put up with it, we absorb the people; we’re good, compassionate people in this country, but we’re reaching numbers that we can’t sustain,” she said. “We’re going to have to ask our government to enforce the law.”
Under the terms of the Birthright Citizenship Alignment Act, children born to parents “subject to foreign power” and not owing “direct and immediate allegiance to the United States” would become citizens of their parents’ country of origin.
The filing borrows and mixes language from the post-Civil War 1866 Civil Rights Act and the 14th Amendment, which was ratified in 1868 to guarantee citizenship for former slaves three years after the 13th Amendment abolished the practice.
And it states that an 1884 U.S. Supreme Court decision in Elk v. Wilkens translated the 14th Amendment’s language ensuring citizenship to people “born or naturalized in the United States and not subject to any foreign power” to mean “owing direct and immediate allegiance” to the U.S.
And the combination of texts cannot be “logically accepted as a mere redundancy,” but instead offers clear proof of the intended requirement that people born in the nation must have citizen parents to receive citizenship, according to the proposal.
But that interpretation is dead wrong and proponents need to look no further than the first sentence of the 14th Amendment, said Robert Clinton, an Arizona State University law professor specializing in constitutional, Indian and federal law.
Known as the citizenship clause, section one of the amendment reads: “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 intent of the clause was to overturn the case law of Dred Scott v. Sanford, which declared blacks were not and could not be citizens. And the phrase “and subject to the jurisdiction thereof,” examined in Elk v. Wilkens, did not pertain to foreigners, but to American Indians, who at the time were not U.S. citizens, nor subject to federal law, he said.
“Born in the United States — end of discussion,” said Clinton, stating children born in the country to non-ambassadorial parents are indeed citizens. “It couldn’t be clearer. Federal law trumps state law. There is no possible way this (the proposed initiative) is legal.”
Montgomery, though not a lawyer, said she wrote the initiative and had it examined by “more than one attorney” who believed the text would stand up to legal scrutiny. A legal battle over the subject, she believes, would be fruitless for opponents if courts examined the history and intentions of the constitutional amendments.
“I don’t see how we could lose,” said Montgomery, who also said the measure is being warmly received by citizens “practically grabbing” signature petition forms from the hands of volunteer collectors, who are also growing in number.
The topic of children of illegal immigrants was not limited to the proposed initiative. Days after the filing, Mesa Rep. Russell Pearce also announced he would initiate a legislative referendum to “assert states’ sovereign right regarding automatic citizenship to illegal aliens born in the state of Arizona.”
“I want Congress to fix this insane policy,” wrote Pearce, in a Dec. 5 press release.
Montgomery’s measure for the 2008 ballot creates an exception for children born to foreign mothers and American fathers, as long as the father’s U.S. citizenship is established and he agrees to financially support the child into adulthood.
State and local registrars would also be prevented from registering birth certificates of children born of non-citizen parents in the United States. Hospital administrators and health care professionals would be required to verify parents’ legal status, a factor that has industry representatives a little nervous.
“We’re very concerned of the potential impacts,” said Bridget O’Gara, vice-president of communications for the Arizona Hospital and Healthcare Association, a group of more than 100 hospitals and health clinics. “It’s the job of our doctors and nurses to safely deliver babies and tend to the needs of the mothers. We don’t want any interruptions. The caregivers are not immigration officials or immigration experts.”
One Republican lobbyist who represents hospitals at the Legislature said he disagreed with the initiative’s goal and believes that increasing sharp measures taken to address illegal immigration will contribute to future electoral losses for the GOP.
“For every Republican who likes the tough talk of border patrols and immigration hotlines and citizen ID cards, there is a family of Hispanic immigrants that are offended by the GOP scare tactics,” said Chris Herstam, a former state representative. “Be careful Republican candidate because the illegal immigration red meat you are throwing at your base voters may come back to haunt you.”
The group must collect and file least 153,365 signatures of Arizona voters by July 3 to qualify for the ballot. The proposal’s serial number is I-13-2008.