Back then, life was good. The father had a high-paying job as an engineer in the Middle East, where the family returned after visiting the U.S.
But six years ago when the couple’s two children reached college age, the family faced a dilemma. Job opportunities became scarce, and they didn’t want to go back to the Philippines because the father likely wouldn’t be able to find work there either.
So the family came back to the U.S., and settled illegally in Arizona.
“The fact that my son is a U.S. citizen — we didn’t want to deny him the benefits of that,” the father told the Arizona Capitol Times. The family agreed to tell their story on the condition that they remain anonymous.
The family’s situation isn’t exactly what Sen. Russell Pearce had in mind when he began developing a plan to challenge the longstanding interpretation of the 14th Amendment to the U.S. Constitution, which grants citizenship to all people born in the U.S. who are under the jurisdiction of the government. After all, it’s widely believed that most of the illegal immigrants in Arizona sneaked across the border with the intention of staying here, instead of giving birth to a child earlier than expected while on vacation.
But Pearce’s proposal, which has yet to be drafted as legislation, may target the right of citizenship now granted to children born here under a wide set of circumstances. His goal, he said, was to stop wasting taxpayer money on people who shouldn’t be classified as citizens and, therefore, don’t deserve the services of the government.
Rep. John Kavanagh, chairman of the House Appropriations Committee, said it’s completely irrational to grant citizenship to people merely because they were born on U.S. soil. He said illegal immigrants take advantage of the system by crossing into the U.S. to have babies here.
“That policy is a magnet that attracts illegal immigrants,” he said.
Supporters of Pearce’s ideas said the goal is to generate discussion at the congressional level or to trigger a court challenge that can go all the way to the U.S. Supreme Court and force the federal government to readdress the issue.
But immigration lawyers and constitutional experts said any law denying citizenship to children of illegal immigrants would be plainly unconstitutional and bound for rejection in federal courts. Whatever the state does won’t change the fact that the 14th Amendment outlines specifically that anyone who is born here is a U.S. citizen, said immigration attorney Regina Jefferies.
“The only thing that I think it will accomplish is opening the state up to equal protection lawsuits,” she said.
The interpretation of the 14th Amendment, as it applies to Pearce’s proposal, hasn’t been challenged in the U.S. Supreme Court in more than a century, when the justices ruled in 1898 that Wong Kim Ark was indeed a U.S. citizen even though his parents were Chinese nationals living in California.
The 14th Amendment, the justices wrote, “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
The court noted exceptions for children of foreign ministers, those who were born to foreign enemies during a hostile takeover of a U.S. territory, those who were born on foreign public ships, and the “single additional exemption of children of members of the Indian tribes owing direct allegiance to their several tribes.”
Congress would later grant U.S. citizenship to Native Americans.
Pearce’s interpretation of the 14th Amendment is much different than the definition established by the Supreme Court. He said the 14th Amendment makes it clear that, in order to be granted citizenship, a person born in the U.S. must also be under the jurisdiction of U.S. government. He said the federal government has misinterpreted that clause by allowing children of illegal immigrants to become citizens even though, as he sees it, they are not under the jurisdiction of the U.S. government.
“We don’t have jurisdiction over those who break into the country,” Pearce said. “Just like a foreign diplomat, we have no jurisdiction over them.”
But Prof. Paul Bender, who teaches constitutional law at ASU, said the government clearly has jurisdiction over a child who is born here, regardless of the status of his or her parents. Illegal immigrants and their children, for instance, are subject to state and federal laws.
“The United States does not have jurisdiction over foreign diplomats. They can’t be prosecuted or sued. Children born in the United States can be prosecuted and sued, and so can their parents, even if the parents entered illegally,” Bender said.
Michael Hethmon of the Immigration Reform Law Institute, a D.C.-based group that is helping lawmakers like Pearce draft immigration legislation, said the Supreme Court has not ruled on the issue of children born to illegal aliens.
Hethmon said pre-Constitution common law considered both physical presence and demonstrable allegiance were required for birth-right citizenship.
“The Supreme Court would have to look at this and say: Does the child born of two parents who entered the United States illegally have allegiance to the United States at the time of birth?” he said.
Most legal experts, however, disagree that any sort of allegiance is necessary to obtain citizenship when the birth took place on U.S. soil.
Erwin Chemerinsky, founding dean of the University of California-Irvine School of Law, said the 14th Amendment leaves little room for doubt about its intent, and any effort to change the interpretation is likely to fail.
“All who are born in the United States are United States citizens,” he said. “They are, by definition, born within the jurisdiction of the United States.”