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Should citizenship be a birthright? Why some GOP candidates say no

August 20, 2015 at 6:40 PM EDT
On Sunday, Donald Trump called for ending constitutionally mandated birthright citizenship. He’s not the only Republican presidential candidate who believes that children born in the U.S. should not automatically be granted citizenship regardless of their parents’ status. Gwen Ifill gets legal and political perspective from Suzanna Sherry of Vanderbilt University and Alan Gomez of USA Today.
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GWEN IFILL: Donald Trump, anchor babies, and the latest big debate on the campaign trail.

DONALD TRUMP, Republican Presidential Candidate: I will build the greatest wall that you have ever seen.

(CHEERING AND APPLAUSE)

GWEN IFILL: Donald Trump’s strong language on immigration has vaulted him to the top of the Republican presidential field. In a policy statement on Sunday, he moved beyond border security concerns, saying he also favors ending constitutionally mandated birthright citizenship. It allows children born in the United States to be U.S. citizens, whether their parents are or not.

The wording of the 14th Amendment is key. “All persons,” it reads, “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.”

That includes children whose parents are here illegally. Trump and others argue that goes too far and encourages people to give birth here as a way of allowing entire families to stay. In some circles, those children have come to be called Anchor babies.

DONALD TRUMP: The parents have to come in legally. Now we’re going to have to find out what’s going to happen from a court standpoint. But many people, many of the great scholars say that anchor babies are not covered. We’re going to have to find out.

GWEN IFILL: Other Republicans candidates agree, including Wisconsin Governor Scott Walker, Governor Bobby Jindal of Louisiana and Senators Rick Santorum of Pennsylvania, Lindsey Graham of South Carolina, and Ted Cruz of Texas.

TED CRUZ, Republican Presidential Candidate: It makes no sense, right now, that we have millions of people coming here illegally to this country, and that current law grants their children citizenship.

GWEN IFILL: Still others including Governors Chris Christie and Senator Rand Paul say the 14th amendment should at least be reexamined. But former governor Jeb Bush who does not support repeal, used the issue today to criticize Trump’s overall approach.

JEB BUSH, Republican Presidential Candidate: You want to get to the policy for a second? I think that people born in this country ought to be American citizens. Okay, now we got that over with.

GWEN IFILL: In New Hampshire yesterday, Trump called the 14th Amendment unconstitutional, but he stopped short of demanding outright repeal.

Joining us now to provide a little legal and political background are Suzanna Sherry, professor of law at Vanderbilt University, and Alan Gomez, who covers immigration for USA Today.

Professor Sherry, I want to ask you this, and Alan as well. Is this a constitutional argument we’re having here or a political one?

SUZANNA SHERRY, Professor of Law, Vanderbilt University: I think it’s a constitutional argument, because the 14th Amendment does guarantee birthright citizenship. And so it has to be amended if anybody wants to change that.

GWEN IFILL: Alan Gomez, a political argument?

ALAN GOMEZ, USA Today: Well, of course there is part of that as well.

There are some in Congress who feel that it doesn’t — they don’t need an entire new amendment to repeal this. They just need to rework the law, interpret it a little bit differently. But, obviously, as we’re seeing on the campaign trail, there is a very heavy political component to this.

GWEN IFILL: So, Professor Sherry, give us a history lesson, the genesis of this debate.

SUZANNA SHERRY: Well, the 14th Amendment was passed in 1868.

And this first sentence, the primary purpose of that sentence was to reverse the 1857 case of Dred Scott, which had held that blacks could not be citizens. So this made everybody who was born here, black or white, a citizen of the United States.

And it was assumed, actually from much earlier than that, from the first founding in the 1780s, it was assumed that citizenship went with birth. That was what common law was at the time. And nobody even challenged it until 1850, when a New York State court found that someone who was born here was a citizen.

And then in 1898, the U.S. Supreme Court weighed in and held that a man, a Chinese man who had been born in San Francisco of Chinese citizens and then had left, he could come back, despite the current law that excluded Chinese immigrants. He could come back, because, being born here, he was a citizen. The court said that birth here is a complete and sufficient qualification of citizenship.

GWEN IFILL: Now, Alan Gomez, to be clear, this is not a debate or a question that Donald Trump started.

ALAN GOMEZ: Absolutely not.

This is something that various Republicans have been trying to push for quite some time. This argument goes back well over a decade, trying to change this. They have wanted to resort to the courts, but they haven’t figured out how to get standings in order to sort of challenge these rulings.

So, in Congress, we have seen repeated efforts. Senator Graham, for example, is one that has co-sponsored one of these to try to change the interpretation of the 14th Amendment to deny citizenship to the children of undocumented immigrants, the argument being that, as we saw in the wording of the language, that undocumented immigrants are not the jurisdiction of the United States, that they’re sort of stateless, and so that they don’t qualify for that benefit.

GWEN IFILL: So, Alan, what would it take for — if this bill were to pass or a bill like it, what does it actually take for Congress to repeal or otherwise to void a constitutional amendment like this?

ALAN GOMEZ: I mean, to repeal the actual amendment, that obviously is an incredibly high hurdle. And so then we’re starting — talking to get into sort of three-quarter majorities, things like that.

But just to pass a law to say that there is a new interpretation of it, that’s another thing, obviously. This president would veto it, but who knows what the next president might think. So, that’s where we get into sort of the political aspect of it, and that’s why we’re seeing it become such a big issue on the campaign trail right now.

GWEN IFILL: Professor Sherry, when’s the last time that Congress or anybody was able to take a right away that is protected in the Constitution? Has it ever happened before?

SUZANNA SHERRY: Well, that’s — it’s only happened once. That is, the Constitution has been amended only once to contract rights, rather than expand them. It’s been amended a lot of times to expand them.

And the only — the one and only time that the amendment — that an amendment contracted rights was the 18th Amendment, which was prohibition, and we all know that that one was repealed several decades later.

GWEN IFILL: Alan, we know, of course, that not all of the Republican candidates are in favor of revoking birthright citizenship. In fact, we heard Jeb Bush today talk about it and say he didn’t necessarily think it was a great idea.

But he also used that term anchor babies. Tell me about the political genesis of that term and why it seems to stir up such dust.

ALAN GOMEZ: I mean, it’s perceived as such a slur to a lot undocumented immigrants, a lot of Hispanics, a lot of immigrants generally who are at least within that first or second wave of immigration.

This goes back for quite some time. I remember Steve King from Iowa, one of the biggest immigration hard-liners we have seen in a long time, and, much like Trump, a bit bombastic in the way he approaches things, using that term quite a bit just a few years ago. And that is when it kind of gained steam, as best as I can remember.

And so it really sort of kind of speaks to this idea. They had Jeb Bush talking about needing to improve the tone with the Hispanic community in this country, calling on his other Republican candidates to improve the tone, yet he would not back away from using the term anchor babies.

And it’s — I think it’s also important to understand that, while Bush was saying that he didn’t believe that we need to change birthright citizenship, he wants to enforce it to try to prevent pregnant parents, pregnant mothers from coming into the country specifically for the purpose of giving birth.

Marco Rubio, a Florida senator, has also endorsed that approach. So even though everybody is not on board with birthright citizenship, we’re seeing a lot of folks who are trying to get at it in different ways.

GWEN IFILL: Professor Sherry, is this a uniquely American, that, if you’re born here, you’re a citizen here?

SUZANNA SHERRY: It’s almost uniquely American. The only other developed country that has birthright citizenship is Canada.

There are a number of South African countries that have it as well. It’s — but no place in Western Europe, no place in Asia, not Australia. A number of European countries, as well as Australia and New Zealand, had birthright citizenship, and they repealed it. I don’t believe it was constitutional in those cases. But they repealed birthright citizenship over the last 20 or 30 years.

GWEN IFILL: And on this idea of anchor babies, is it — is there any evidence to support the notion that this is a widespread idea that women come here to have babies and gain citizenship for them? Is there any number — are there any numbers to back that up?

ALAN GOMEZ: I mean, it’s always hard to quantify intentions.

But, yes, I can tell you, just in the reporting that I and some of my colleagues have done over the years on this issue, that there is absolutely an industry of people who come here or send people to this country for the purpose of giving birth.

In China, for example, travel agencies advertise that you can come over here. They teach you and coach you on how to speak to the customs and border agent as you’re coming in so that you can get in, have your baby, get the citizenship and head on back.

And, unquestionably, there are some undocumented immigrants from Central and South America who have done the same thing when they cross over. But in terms of the numbers, the last time I saw anybody even try to take a look at that was the Pew Research Center a few years ago. And they found that well over 90 percent of the people who gave — of the undocumented immigrants who gave birth in the United States had arrived in the United States at least two years prior.

So, in other words, they had come here and they were not pregnant while they were doing so.

GWEN IFILL: And, Alan, I have one more question for you. Is there — how does this work for the Democrats?

ALAN GOMEZ: For the Democrats, they pretty are much sitting back and smiling at this point.

I mean, if the purpose of what the Republicans are trying to do right now is to win the Republican nomination, there is a lot of support among Republican voters for a lot of these ideas that we’re talking about, including changing birthright citizenship.

But when you transition over to the general election, look, Mitt Romney didn’t go this far, right? And he only garnered 27 percent of the Hispanic vote. So if they have any hopes of trying to win over at least 27 percent, if not more, of the Hispanic vote, which is the fastest growing demographic in this country, these kind of things are very, very dangerous.

GWEN IFILL: No discussions of self-deportation this year at least.

Alan Gomez of USA Today and Suzanna Sherry of the Vanderbilt University School of Law, thank you both very much.

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