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Automatic citizenship

September 17, 2010

A move to deny birthright citizenship to children of illegal immigrants in the US is gaining political traction and public support. But experts say this won't just be hard to do, it could also be counterproductive.

Pro immigrant protestors gather after marching in Dallas, May 1, 2010
Illegal immigrants face increasing legal and political pressureImage: AP

According to a new poll released this week, almost half of Americans are against giving automatic citizenship to children of illegal immigrants born in the US. While 48 percent of people sampled by the Quinnipiac University Polling Institute in Connecticut oppose the constitutionally sanctioned practice, 45 percent of respondents support it with sentiment running pretty much along party lines.

The poll is certain to add further momentum to political initiatives launched by Republicans in Congress to overturn the long-held practice of granting birthright citizenship to children of illegal immigrants born on US soil.

The principle of birthright citizenship dates back to 1865. In the aftermath of the US civil war, the 14th amendment to the constitution was adopted to extend citizenship rights to former slaves, stating: "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."

Overturn amendment or pass a law

On the basis of the 14th amendment, automatic birthright citizenship has been granted to children born on US soil regardless of their parents' legal status.

Man carries his two-year-old daughter, during an immigrant rights march in downtown Dallas
Children of illegal immigrants only get US citizenship if they're born on US soilImage: AP

Recently, however, calls to deny automatic citizenship to children of illegal immigrants have increased. Critics of the current practice charge that children of illegal immigrants are not subject to the jurisdiction of the US and were not intended to fall under the 14th amendment.

However, overturning the 14th amendment would be virtually impossible, because it would require a two-thirds majority in both chambers of congress and would have to be adopted by three-fourths of the states. Some Republicans therefore argue that passing a statute clarifying and revoking birthright citizenship for illegal immigrants would suffice.

"I think that is a wrong legal interpretation," says Stephen Yale-Loehr, a law professor at Cornell University and one of the most renowned experts on US immigration law. His opinion is shared by Polly Price, a law professor at Emory University.

"The statute would not be enough to change the law, because the United States Supreme Court would strike it down pretty quickly in violation of the constitution," Price concurs.

While more than 90 members of the US House of Representatives have already co-sponsored the so-called Birthright Citizenship Act of 2009 aimed at denying automatic citizenship to children of illegal immigrants born in the US, passing a bill won't be good enough, says Yale-Loehr.

"If the US people want to change that rule effectively, they have to repeal the 14th amendment and enact an amendment instead," Yale-Loehr said. "And that's very hard to do. We haven't had constitutional amendments in the United States for many years."

Denying birthright citizenship won't slow immigration

Beyond the legal realm, though, there are also sociological and political reasons why changing the current practice would be unwise, argues Anna Triandafyllidou, a migration expert and professor at the European University Institute in Florence.

"This is not going to solve the problem of irregular migration and it would make the streets even more dangerous," she says.

Triandafyllidou contends that seemingly easy solutions, such as the measures targeting illegal immigrants that have been instituted in Arizona recently or revoking birthright citizenship for children of illegal immigrants, don't tackle the larger problem associated with migration. People will still migrate to the United States, even if their children are not guaranteed US citizenship. Yale-Loehr points out that by ending birthright citizenship, the theory that fewer people will come to the United States simply to have their children born there is erroneous.

Migrant workers tend to lettuce crops in Salinas, California
Undocumented workers play a vital role in the US economyImage: AP

"A recent study by the Migration Policy Institute in Washington DC said that if we did eliminate birthright citizenship, it would actually increase the number of illegal aliens in the United States by at least five million over the next four decades," says Yale-Loehr. Currently, there are an estimated 11 million people residing in the US illegally.

According to Price, the sociological implications also needed to be considered.

"If a large segment of your population has an undocumented status, then potentially you create a permanent underclass for persons who were born here and have lived here all their lives and yet do not have the opportunity to become citizens," Price says.

German reform with unintended consequences

While the US practice of granting citizenship to anyone born on its soil is very liberal compared to most other countries, it has served the US well. It has made the country attractive for immigrants which are an important factor for keeping the US competitive and innovative, experts argue.

Tinkering with the system, without a comprehensive reform, could therefore lead to unintended consequences, Yale-Loehr explains. He cites the example of Germany, which 10 years ago loosened its citizenship laws making it easier for children born in Germany to become citizens if at least one of the parents had lived in the country legally.

"But the children born in Germany of two undocumented parents still are not German citizens at birth," says Yale-Loehr. "As I understand it, the result is that you have an underground market in Germany in fraudulent paternity where German men who are citizens, known as Imbissvaeter or fast-food fathers, claim to be a child's father in exchange for a fee thus enabling the child to be a German citizen. Something like that could happen in the United States if we restrict or eliminate birthright citizenship here."

Author: Michael Knigge
Editor: Sabina Casagrande