Illegal Alien Birth Rights; Challenged on the Right

At a breakfast on Thursday in Washington, Senator Mitch McConnell, the Senate minority leader, tried to tamp down a controversy that started when Senator Lindsey Graham, Republican of South Carolina, questioned the 14th Amendment to the Constitution, which grants the right to citizenship to anyone born in the United States.

“I am not aware of anybody who has come out in favor of altering the 14th Amendment,” Mr. McConnell said.

But Mr. Graham, speaking on Fox News last week, said it was “a mistake” to allow American-born children of illegal immigrants to become citizens automatically, a practice known as birthright citizenship. He said that along with a plan to grant legal status to millions of illegal immigrants, he would also amend the 14th Amendment as a way of discouraging future unauthorized immigration.

Throughout the week Mr. Graham stood firm on his proposal. “We can’t just have people swimming across the river having children here — that’s chaos,” he said Wednesday in another interview with Fox News.

The proposal caught Republican and Democratic lawmakers by surprise, not least because it came from Mr. Graham, who earlier this year was the leading — and almost the only — Republican negotiating with Democrats to create an immigration overhaul bill. Mr. Graham gave new prominence to an issue that has long been a favorite of conservatives advocating reduced immigration, but has been peripheral to the immigration debate in Congress.

Mr. McConnell said Republicans were calling only for hearings on the issue. The debate centers on the first sentence of what is known as the citizenship clause: “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 amendment was adopted in 1868 to ensure the citizenship of the American-born children of freed slaves.

Opponents of birthright citizenship contend that illegal immigrants are not under United States jurisdiction, therefore their American-born children should not automatically be citizens. They say the amendment could not apply to those immigrants because there was no illegal immigration when it was adopted.

“If you are an illegal immigrant, we clearly have not given you permission to reside here,” said Rosemary Jenks, director of government relations for NumbersUSA, a group that favors decreased immigration. “You are still subject to the jurisdiction of your own country.”

But giving citizenship to everyone born in the United States has been the practice since the 1860s, and was upheld by the Supreme Court on the few occasions when it was tested there, immigration lawyers said. A change to the law to disallow the children of illegal immigrants would vastly increase the undocumented population, lawyers said, rather than reducing it. Babies born to Mexican mothers here illegally, for example, would become illegal Mexican immigrants from the moment of birth.

“You would be perpetuating a large undocumented population, with all these children growing up very much living in the shadows,” said Hiroshi Motomura, an immigration law professor at the University of California, Los Angeles.

Mr. Graham’s proposal revived a popular misunderstanding: In the often heated debate over birthright citizenship, pundits refer to the problem of “anchor babies,” and talk show callers express frustration that pregnant women could cross the border from Mexico illegally, then rely on their American citizen newborns to put them immediately on a path to citizenship.

In fact, under immigration law American citizen children must wait until they are 21 years old to apply for legal residency for their parents. Also, most of the illegal immigrants who have children who are American citizens have not recently arrived.

About four million American citizen children have at least one parent who is an illegal immigrant, according to a study last year by the Pew Hispanic Center, a nonpartisan research group in Washington. They usually live in families that have been in the United States for a number of years and very often include both illegal immigrants and American citizens, the study found.

Altering the Constitution — especially an amendment that is dear to black Americans — is such a huge political proposition that few lawmakers thought Mr. Graham’s comments would lead to any action before November’s midterm elections.

But the episode was a sign of the pressures on Republicans over immigration, after a tough law they passed in Arizona put the party squarely on the side of cracking down on illegal immigrants. Mr. Graham’s move helped to shore up his credentials with some conservatives.

But some Republicans worried that the issue could backfire. “This type of position may help you win a few elections,” said Alfonso Aguilar, executive director of the Latino Partnership for Conservative Principles, a group that tries to draw Latinos to the Republican Party. “But you are damaging relations with the Latino community.”

http://www.nytimes.com/2010/08/07/us/politics/07fourteenth.html?_r=1