The Debate over Birthright Citizenship Gains Steam

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As Arizona’s SB1070 fans the fiery debate over immigration, Kentucky’s Mitch McConnell has joined several Senate Republicans to endorse a Congressional review of the 14th Amendment’s citizenship clause, which automatically accords citizenship to any child born in the U.S., regardless of parental immigration status. “I think we ought to take a look at it — hold hearings, listen to the experts on it,” McConnell told the Hill newspaper yesterday. “I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with.”

McConnell, the Senate Minority Leader, was the third member of the GOP conference to raise the issue recently. Last week South Carolina Sen. Lindsey Graham told Fox News he was considering introducing a constitutional amendment to address the proliferation of illegal immigrants. “Birthright citizenship I think is a mistake,” Graham said. “We should change our constitution and say that if you come here illegally and you have a child, that child’s automatically not a citizen.” Sen. Jon Kyl of Arizona, the Minority Whip, concurred during an appearance on Face the Nation over the weekend. “This is a constitutional provision of the 14th Amendment that has been interpreted to provide that if you are born in the United States, you are a citizen, no matter what,” Kyl said. “The question is if both parents are here illegally, should there be a reward for their illegal behavior?…We should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.”

The relevant facet of the 14th Amendment, which ensures due process and equal protection, states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” While proponents of repeal say the language–specifically the phrase, “subject to the jurisdiction thereof”–is ambiguous, judicial precedent is stacked against them. That’s one reason why the notion of revisiting the citizenship clause may be more of a political gambit than a realistic proposal. Bills challenging the citizenship provision have been proposed multiple times in recent years without success–former Rep. Nathan Deal, who’s running for governor of Georgia, submitted such an idea last year, and Rep. Ron Paul did so in 2007 without success. “Anchor babies,” as critics of birthright citizenship have dubbed children born to illegal immigrants, have long been a subject of scorn for conservatives. But a constitutional amendment requires the backing of two-thirds of both chambers of Congress and ratification by 38 states–which is highly unlikely, to say the least.

It’s unclear how far the party is willing to push the issue, or whether conference members are on the same page. A GOP aide told the Washington Post’s Greg Sargent that “nobody is talking about an all out repeal of the 14th Amendment,” and that McConnell merely supported holding hearings to revisit the concept of birthright citizenship. But the topic has sparked a pitched battle in the Senate, as The Hill reports, and Senators like Graham and James Inhofe seem to have their minds made up.

A majority of Americans support Arizona’s new law, and in the short term a hard-line stance on illegal immigration may give Republicans a boost. As a long-term political strategy, however, attacking birthright citizenship is an easy way to alienate the nation’s largest and fastest-growing minority group. In one recent poll, 49% of respondents supported birthright citizenship, while 46% said the law should be tweaked. But that poll found nearly 80% of Latinos are in favor of the provision–a figure that’s surprising only because it wasn’t greater. Many conservatives have argued the GOP risks kneecapping itself with the Hispanic electorate. “If the Republican Party embraces ending birthright citizenship, then it will be assured losing Latino and ethnic voters — and presidential elections for the foreseeable future,” wrote Cesar Conda, former domestic policy adviser to Vice President Dick Cheney.

Senate Democrats roundly denounced the idea, and White House Press Secretary Robert Gibbs chided McConnell for his comments. “I don’t know if that was based on 2010 or 2012,” Gibbs said. “But my hunch is it is based purely on politics.” However, analysts argue that Democratic efforts to court Hispanics have been sluggish. Despite the Obama Administration’s criticism of the Arizona law, Hispanic support for the President has waned over the past few months, according to Gallup polls. On NPR, columnist Ruben Navarrette argued, “If I think Democrats already take Latinos for granted, it’s going to get only worse from here because they’re going to feel they don’t have to do anything because Latinos are simply going to go to the Democratic Party. So it’s bad for both parties. It lets Democrats be lazy, ineffective and unresponsive. And lets Republicans sort of live in their cocoon, and they’ll go the way of the Whig Party.” Hyperbole, to be sure. But there is an irony in the fact that the GOP, which often wields Constitution as a cudgel to batter Democrats, is also the party proposing to change it.

*One addendum: As Talking Points Memo notes, Sen. John McCain–who favors a hearing on this topic, but sidestepped questions about whether he supported the idea–has weighed in on natural-born citizenship before.