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States' Dare to Feds on Birthright Citizenship Stirs Protests States' Dare to Feds on Birthright Citizenship Stirs Protests

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States' Dare to Feds on Birthright Citizenship Stirs Protests

A handful of state legislators challenging Congress to narrow the manner in which citizenship is granted to babies born in the United States found themselves interrupted multiple times today by protesters accusing them of racism and bigotry.

Security was called in to monitor a packed briefing room at the National Press Club, where legislators from Arizona, Pennsylvania, Georgia, Oklahoma, and South Carolina unveiled two model documents for state legislatures designed to address what they see as a key incentive for illegal immigrants crossing the border—that children born on American soil will be granted U.S. citizenship.


The documents, a bill defining a “citizen of the state” as a person born to at least one parent who is in the country legally and a “compact” asking Congress to consent to a new definition of U.S. citizenship that requires children to have at least one legal parent, are likely to be introduced in dozens of states this year. Several states are expected to pass them, and their enactment will invite lawsuits from civil rights organizations saying they encroach on a fundamental Constitutional right of citizenship.

That’s the point, according to the proponents. “This is a very calculated, strategic step on our part,” said state Rep. Daryl Metcalfe, R-Pa., who heads the group State Legislators for Illegal Immigration that is coordinating the effort. The model bill “reasserts” states’ rights to grant state citizenship to its residents. It’s unclear what happens once those bills are passed. U.S. citizenship is determined by the federal government, and drafters of the model state legislation are adamant that a lack of state citizenship doesn’t remove any residents’ legal rights.

Protesters weren’t swayed by that argument, as they were ushered, then shoved, out of the room. One protestor noted that the Constitution was “inscribed on the states,” and another accused legislators of returning to slavery-era thinking. They handed out flyers depicting cartoon pilgrims asking, “Who’s the anchor baby?” It was unclear where the protestors came from. On his way to the elevator, one protester said he is a college student in Washington.


Leadership Conference on Civil and Human Rights President Wade Henderson said the draft state bill would create “two tiers of citizenship, a modern-day caste system … for the first time since the end of the Civil War.”

Unlike the model bill, the compact would not have any effect in states that pass it unless Congress approved it. If Congress did approve the compacts (unlikely, for now), chaos could ensue because the citizenship status of residents of some states may be seen differently than residents in other states. Generally, compacts are used when states need federal consent for rules that are internal to their state lines, such as those for waste disposal practices or water rights. The use of the compact to address a federal issue is essentially a dare to Congress from state lawmakers tired of federal inaction on immigration. “We’re not going away,” said Metcalfe.

Both model documents site a phrase in the 14th Amendment stating that people born in the United States are citizens if they are “subject to the jurisdiction thereof” the country. Drafters say children born of illegal immigrants don’t qualify as citizens under that definition. “They’re not subject to the jurisdiction if their parents have no allegiance to the United States,” said Kris Kobach, a law professor at University of Missouri (Kansas City) and author of the documents. Kobach also is the brains behind Arizona’s now infamous immigration enforcement law, which is being challenged by the federal government.

Kobach says that neither Congress nor the courts have weighed in with much clarity on what exactly that 14th Amendment means in terms of who gets to be a citizen. Much like the furor over the Arizona immigration enforcement law, the birthright citizenship state laws are intended to provoke conversation at the federal level and in the courts.


“This is technically a legal method of having the Supreme Court review, once and for all, the phrase in the 14th Amendment,” said Arizona Rep. John Kavanagh, a Republican.

There was some angst, if not outright protest, among journalists in the room, who tried several times to learn what would happen to people in states that pass these laws. “It will have very little practical effect other than to trigger a lawsuit,” Kavanagh said, ignoring a comment from an Arizona reporter about the impact on state finances and businesses of the state's enforcement law.

This article appears in the January 5, 2011 edition of National Journal Daily PM Update.

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