Birthright bills run into trouble

Luige del Puerto//February 7, 2011

Birthright bills run into trouble

Luige del Puerto//February 7, 2011

Sen. Kyrsten Sinema listens to XXX professor XXX argue for SB1309, the bill that aims to deny citizenship to children born to illegal immigrants. (Photo by Ryan Cook/RJ Cook Photography)
Sen. Kyrsten Sinema listens to Chapman University School of Law professor John C. Eastman argue Monday for a bill that would deny citizenship to children born to illegal immigrants. (Photo by Ryan Cook/RJ Cook Photography)

Backers of proposals that aim to ultimately deny U.S. citizenship to children born to illegal immigrants suffered a setback on Monday when the chairman of the Arizona Senate committee that tackled the bills concluded he did not have the votes to approve them.

Sen. Ron Gould, chairman of the Senate Judiciary Committee, held the two measures after three hours of testimony by proponents and critics surrounding the legal complexities of the 14th Amendment to the U.S. Constitution and the intricacies of today’s immigration system.

When asked why he held the two-bill legislation, Gould admitted that the measures do “not (have) enough votes yet.”

“It was going to go down,” said Sen. Kyrsten Sinema, a Democratic member of the panel.

Sinema surmised that just based on the questions raised by at least two Republicans on the eight-member committee, Sen. Adam Driggs of Phoenix and Sen. John McComish of Phoenix. With Sinema clearly opposed to the bills and another Democrat, Steve Gallardo, also expected to oppose them, the bills Would have failed on a 4-4 vote if Sinema’s hunch was correct.

Another Republican, Sen. Steve Yarbrough of Chandler, also may have been leaning against the legislation, Sinema added.

But critics of the legislation would be mistaken to celebrate. No bills are ever dead until the end of session.

Indeed, Gould can still choose to bring the bills back for a vote at another time or they could be assigned to friendlier committees, where their passage would be assured.

There is also an identical legislation in the House. That legislation may go forward instead.

What both sides can agree on is that the Senate proposal, if revived, still has a long way to go before it reaches the finish line.

As introduced, SB1309 creates and defines an “Arizona citizenship.” The second measure, SB1308, will direct Arizona’s governor to enter the state 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 legislation is part of a national strategy by policymakers who support a strict-enforcement approach to confront illegal immigration by getting the US Supreme Court to revisit the issue of American citizenship.

But the proposal also opens a new front in the complex and often emotional debate about illegal immigration, as it seeks to re-define who is an American.

It was apparent that the two measures were in trouble at the outset when Driggs, who is also a lawyer, opened the hearing with a series of questions about the technicalities of implementing the legislation.

Since it creates an “Arizona citizen”, Driggs said he wanted to know, for example, how it would apply to an-out-of-state resident who moves to Arizona.

Drigg’s point was merely one of the compelling discussions during a hearing that brilliantly showcased the arguments and counter-arguments over whether a child born to undocumented residents is “subject to the jurisdiction” of the United States, a key phrase in the 14th Amendment, which has been interpreted to grant automatic U.S. citizenship to children born in the country regardless of their parents’ legal status.

If the legislation reaches the U.S. Supreme Court, the debate before the country’s justices will hew closely to the points that were examined and scrutinized in Arizona today.

The issue can be briefly described as a clash of interpretation over whether jus soli, an ancient concept that grants citizenship to those who are born within a territory, also extends to the 14th Amendment. The bills’ backers said it doesn’t. The bill’s critics said it does.

Taking up the cudgel for the bill’s backers is Prof. John C. Eastman of Chapman University School of Law in Orange, Calif.

His points can be summarized this way:

First, the phrase “subject to the jurisdiction” of the United States in the 14th Amendment is ambiguous.

Second, while there were several cases that dwell on who is and who is not an American citizen, the Supreme Court has never ruled on the citizenship of a child whose parents are here illegally.

He said the 14th Amendment has two requirements: One is that a person must be born in the United States; the second is that the person must be subject to the country’s jurisdiction.

“If all ‘subject to the jurisdiction’ meant was that you were physically present in the United States, that phrase would be almost entirely redundant with the phrase ‘born in the United States,’” Eastman said.

He brought up one example: A tourist from Britain is subject to American jurisdiction in the “territorial or partial sense” in that he must follow U.S. laws on driving, for example. But the tourist cannot be drafted into the U.S. Army, nor is he allowed to vote. Hence, he is not a subject to U.S. jurisdiction in the broader sense.

But citing several cases, Sinema and others said the Supreme Court has decided that the foreign citizenship of parents didn’t affect the American citizenship of their children.

Sinema also reiterated her points that the legislation would exclude from getting American citizenship those who are lawfully in the country and are therefore entitled to it.

The way the legislation is drafted, that denial would apply to Arizona residents and U.S. citizens who hold a dual citizenship; children born to U.S. soldiers in bases overseas also wouldn’t be considered American citizens, she said.

“Indeed, if this legislation had been retroactively dated, it would have denied our very own United States Sen. John McCain the benefits and recognition of Arizona citizenship under this law,” she said.

Driggs took up the role of the skeptical interlocutor, perennially probing the arguments for the legislation.

At one point, Driggs said the 14th Amendment doesn’t contemplate the citizenship of parents.

“They did not say a person born of U.S. citizen parents is a U.S. citizen,” he said.