… Citizenship Clause. The Center for Immigration Studies has published a number of reports on birthright citizenship and it is clear that neither Congress nor the Supreme Court has ever mandated that children born to illegal and temporary aliens must be considered U.S. citizens under the Constitution. Rather, the permissive policy is the result of agency policymaking. At least one influential jurist, Circuit Judge Richard Posner, feels that the policy could be ended through a simple act of Congress. This debate, as well as the history of the Citizenship Clause is detailed in our report, “Birthright Citizenship in the United States: A Global Comparison”.
Supporters of the status quo understand that history is not on their side and have resorted to scare tactics to discourage discussion about the subject. In this new report, “The Cost to Americans and America of Ending Birthright Citizenship”, author Margaret Stock claims that if the United States does not continue granting automatic citizenship to children born to illegal aliens, the following will happen:
* The country will need a bigger and more costly bureaucracy that will lead to a national ID card.
* The country will create a caste system and shadow economy, while reducing the tax base and contributions to Social Security and the military.
These are just two of the unsupported, over-the-top claims in Stock’s report. This Memorandum attempts to provide a more balanced analysis.
Anti-tax Grover Norquist helped release the report, apparently thinking that mass immigration somehow benefits a conservative, low-taxation agenda when it does not. See “The High Cost of Cheap Labor:
Illegal Immigration and the Federal Budget”, “Welfare Use by Immigrant Households with Children: A Look at Cash, Medicaid, Housing, and Food Program”, and “Illegal Immigrants Receive Billions of Dollars More from the IRS than They Pay in”. In any event, one would think true conservatives would put strict adherence to the Constitution above all other political interests. Support for accurate application of any given amendment shouldn’t rest on hypothesized costs of accurate application.
Bureaucratic Overhaul Unnecessary
Stock claims that not granting automatic citizenship to anyone and everyone born on U.S. soil “will cost new parents in the United States approximately $600 in government fees to prove the citizenship status of each baby and likely an additional $600 to $1,000 in legal fees.”
How does Stock come up with this estimate? She uses the cost associated with USCIS verifying citizenship of children born overseas to U.S. citizens. This is a silly comparison because in the instance of overseas births, USCIS must look over paperwork issued by foreign countries and conduct a fact-finding process that may involve contacting foreign bureaucrats. The process of verifying births overseas is costly because it happens infrequently and requires an individualized investigation.
But when it comes to births on U.S. soil, USCIS would not have much of a role to play and individualized investigations would, for the most part, be unnecessary. The process would be standardized and pretty straightforward. But once Stock’s odd cost estimate is made, the hyperbole flows easily:
Accordingly, we can calculate that changing the 14th Amendment will be roughly equivalent to a $600 baby tax on every child born in the United States — or as an alternative way of thinking about it, we can say that changing the Citizenship Clause will have direct costs of about $2.4 billion per year. This estimate, of course, is just the direct bureaucratic cost — not the cost of hiring a lawyer who can help a person submit the documents to the bureaucracy, or the cost of litigation and damages when the bureaucracy makes a mistake.
Clearly, Stock hasn’t attempted to come up with a cost-effective process. Put simply, hospitals should not be issuing the same type of birth certificates to children who are not to be considered U.S. citizens under the 14th Amendment as they do to children who are U.S. citizens by birth. Similarly, the Social Security Administration (SSA) should not be issuing new Social Security numbers (SSNs) to children who are not U.S. citizens under the 14th Amendment. The process would involve SSA and a state’s vital statistics office, the latter of which is tasked with issuing birth certificates. It should be pretty simple.
Currently, new parents must fill out hospital forms in order to get their newborn a birth certificate and SSN. A parent simply checks a box if they want their child to receive a SSN. It is optional for a parent to fill out the portion requesting parental SSNs, but it could be made mandatory for those parents wishing to get a SSN for the newborn. The SSA would then simply determine whether the parents are capable of giving birth to a U.S. citizen under the 14th Amendment: If the parents do not have a SSN, the answer is likely “no”; if they do, and if the SSN is verified and not affiliated with a temporary visa holder, then the answer is likely “yes”. (Note: some people who arguably cannot give birth to U.S. citizens can obtain SSNs.) After some initial cooperation with immigration agencies, the process would become part of the SSA’s standard operating procedures.
The verification could then be passed from the SSA to the state vital statistics agency tasked with producing a birth certificate for the newborn; if it’s confirmed that the child is not a U.S. citizen under the 14th Amendment and should, instead, take on the parents’ foreign citizenship, then the document would simply read “Not for the purpose of establishing U.S. citizenship”. This is just a suggestion, and surely administrative experts could come up with additional, low-cost methodologies that complement existing procedures.
When combined, birth certificates and SSNs create the appearance of U.S. citizenship, and Stock admits this in her report. The problem is that no child born in a U.S. hospital is denied such forms — even children born to foreign diplomats, individuals who all experts agree are not U.S. citizens by birth. This is problematic for a number of reasons; for example, an official with Office of Personnel Management (OPM), the federal agency tasked with vetting national security jobs available only to U.S. citizens, told the Center for Immigration Studies that a person with a validly issued U.S. birth certificate and SSN will be treated as a U.S. citizen, even though he may clearly not be a U.S. citizen.
For the record, a top official at the SSA explained to the Center for Immigration Studies that the agency knows that children born to foreign diplomats should not automatically be receiving SSNs at birth; they know that it is happening, but they haven’t been tasked by Congress to come up with a system to prevent such issuance. The idea of improving the SSN issuance process has been on the agency’s radar for quite some time. A relatively simply administrative fix is all that is necessary to bring citizenship policies in line with the Citizenship Clause.
Requiring at least one parent to have a valid SSN before a child can be considered a U.S. citizen by birth would end grants of citizenship to children born to foreign diplomats, visiting/temporary aliens, and illegal aliens, resulting in a policy that is arguably commensurate with the intended scope of the 14th Amendment. A suggested administrative process is explained in more detail in the CIS Backgrounder “Birthright Citizenship for Children of Foreign Diplomats?”.
But if we’re talking costs, there are at least two things to consider. First, what’s the cost of having a baby right now? One healthcare organization estimates delivery alone ranges from $9,000 to $15,000, without complications. Second, what’s the cost of mass immigration? (And we know the current application of the Citizenship Clause induces more immigration, both legal and illegal. See birth tourism, for example.) The Center for Immigration Studies finds that in terms of federal taxes, illegal immigrants paid $10.3 billion less than they cost federal taxpayers in YEAR. The net fiscal drain at the state and local level is almost certainly much larger. If currently illegal immigrants obtained legal status (perhaps by adjusting their status through their U.S.-born citizen children, as federal law allows), then the fiscal drain at the federal level would almost triple, since the previously illegal immigrants would begin to use government services to which they were previously not entitled. Of course, illegal immigrant parents already can obtain some welfare benefits via their U.S.-born children as a result of the United States granting these children automatic U.S. citizenship.
So even if Stock’s numbers were correct, an additional $600 isn’t that much by comparison. In the long run, it could save taxpayers a significant amount of money. Fortunately, Stock’s estimate is hyperbole and includes the cost of creating centralized databases and national ID cards. The United States already has most of the necessary bureaucracy to accurately regulate the Citizenship Clause, and we already use SSNs for identification purposes. The relevant agencies simply need direction from Congress.
No Caste System, No Stateless Children
Stock also argues that not granting citizenship to children born to illegal aliens would create a large population of illegal aliens that would grow, over time, from 4.7 million to 13.5 million by the year 2050, thereby creating a two-tiered caste system made up of stateless people. This claim is flawed for two reasons.
As to the caste system concern, there is an easy way to prevent such a scenario from ever unfolding: deport illegal aliens. A caste system will only develop if we continue to allow foreigners to live in the United States in violation of federal law. Up to 400,000 children are born to illegal aliens on U.S. soil every year, accounting for 10 percent of all births in the country. If the United States were to consider these children illegal immigrants (rather than automatic U.S. citizens as it does now) and allowed them to remain in the country then, yes, the United States would be adding 400,000 illegal aliens annually to the total illegal alien population. But federal law requires that illegal aliens be deported. A two-tiered society would not be the result of ending automatic birthright citizenship — it would be the result of non-enforcement of immigration laws. Illegal alien adults should be deported at the first possible opportunity, while temporary legal aliens must be made to return home at the date of visa expiration.
In fact, with nothing more than enforcement of immigration laws, the entire issue of birthright citizenship for children of illegal aliens would disappear. It’s only because the executive branch has been so derelict in its responsibilities for decades that we now have the phenomenon of millions of children born to illegal aliens. Of course, illegal immigration enthusiasts are constantly opposing anything that would prevent illegal immigration and encourage illegal aliens to return home (e.g. secure borders, E-Verify, Secure Communities, 287(g), an Exit system). Put another way, the very same advocates creating the conditions for mass illegal immigration are now advocating doing nothing to discourage the fallout of these open-border conditions. It’s not far off to call this a broad-based attack on U.S. sovereignty that effectively puts control over U.S. immigration and population policy in the hands of foreigners who, via their illegal acts, shape the future of the United States.
Secondly, it is incorrect for Ms. Stock to refer to the children of illegal aliens as “stateless.” These children are not stateless, but, in fact, would take on the citizenship of their parents if the United States was not so quick to pass out citizenship like candy. Think about it in a different context: When a U.S. citizen travels overseas and unexpectedly gives birth on, say, Italian soil, does that child become stateless since Italy doesn’t automatically grant citizenship to children born to foreigners? Of course not. The child is considered a U.S. citizen and our nation provides the necessary paperwork to the American parents upon their return home. Most countries operate the same way. Therefore, a Mexican national giving birth on U.S. soil, for example, would simply pass her citizenship on to her child. And in the case of Mexico, we already know how that government feels about Mexican illegal aliens in the United States. In its recent amicus brief to the U.S. District Court overseeing the injunction hearing on Arizona’s anti-illegal immigration bill S.B. 1070, the government of Mexico refers to Mexican illegal aliens as “its people” and “its citizens”. Consequently, if a Mexican illegal alien gives birth on U.S. soil and the United States considers that child to also be an illegal alien by nature of taking on the parent’s status, the child will be considered “Mexican” by the Mexican government, and not stateless.
And in the rare event that a foreign mother gives birth on U.S. soil and then leaves the newborn on the steps of a church before disappearing into the shadows, leaving the newborn truly without an identity, the United States already has “stateless child” laws that would come into effect (See, 8 U.S.C. §1401). The argument that we should not adhere to the Citizenship Clause for fear of creating stateless children is one not grounded in reality.
Shadow Economy Can Be Ended
Stock argues that if the children of illegal aliens took on their parents’ citizenship status it would result in many of the children being unable to ever find an alternative way to adjust their status to that of a legal immigrant and that they would therefore start working illegally and “enter the shadow economy”. Of course, when illegal aliens are deported in accordance with existing law, it prevents the growth of underground economies. A national E-Verify mandate, for example, would help prevent the conditions Stock claims to fear. Unfortunately, Stock and her allies are already partially responsible for creating an underground economy as a result of their opposition to nearly all immigration enforcement. As it is, today approximately seven to eight million illegal aliens are holding jobs that would otherwise go to legal workers. Ending grants of automatic citizenship to children born to illegal immigrants isn’t a complete solution to all illegal immigration, and no one is suggesting it is. Illegal immigrants would still have to be deported and in some instances the denial of birthright citizenship to children of illegal aliens would make the process easier.
The negative impact of jobs being held by illegal aliens is considerable. Take the 2006 ICE raids of the Swift & Co. meatpacking plants, the largest ICE enforcement effort in history. The Center for Immigration Studies estimates that 23 percent of the plant’s workers were in the country illegally. Government data show that the average inflation-adjusted wages of meatpackers in 2007 were 45 percent lower than in 1980. This is to be expected when an industry is flooded with endless supplies of cheap, illegal labor. CIS found that after the raids the number of native-born workers at the plant increased significantly and wages and bonuses rose on average 8 percent with the departure of illegal immigrants. As Harvard economist George Borjas has found, by increasing the supply of labor between 1980 and 2000, immigration reduced the average annual earnings of native-born men by an estimated $1,700 or roughly 4 percent; among natives without a high school education, who roughly correspond to the poorest tenth of the workforce, the estimated impact was even larger, reducing their wages by 7.4 percent. There’s simply no such thing as a job Americans won’t do, but Americans aren’t so willing to be exploited. It would be a mistake to assume that dramatically increasing the number of foreign workers has no impact on the employment prospects or wages of natives.
It should be noted that simply flipping a switch and turning illegal aliens into legal immigrants (as an amnesty would do) is not a solution to any of these problems. In fact, it would make the downward pressure on wages permanent. An amnesty would certainly be beneficial to unscrupulous businesses that put profit over lawful business practices, however, and that’s why these businesses fund open-border groups.
Again, the solution is vigorous enforcement of immigration laws so that illegal immigrants are returned home. This can be accomplished through the attrition policy. Removing illegal aliens from these jobs would result in businesses offering better wages and improving working conditions in order to attract legal workers. A complete answer requires moving to a more rational immigration system — one that is created by the U.S. citizenry rather than by the whim of a foreigner choosing to come here in violation of the law, as current birthright citizenship policy allows.
Stock also claims that not granting automatic citizenship to anyone and everyone born on U.S. soil means that “millions of young people will be paying less in federal, state, and local taxes than they would if they were deemed to be citizens at birth.” No research is cited to back this claim and it requires one to believe that the existing population of less-educated immigrants and their children is a net benefit to the United States, even though such reasoning is generally not supported by major research organizations. Take, for example, a report by the National Academy of Sciences that found immigrant households in 1997 created an $11 to $20 billion net fiscal drain every year (as measured by taxes paid minus services used). Today the economic benefit and fiscal drain are larger, reflecting our larger economy and government, but the deficit still exists. The Center for Immigration Studies has conducted a great deal of research on this subject; see Steven Camarota’s congressional testimony “Immigration and the U.S. Economy” and C-Span’s video coverage of the CIS panel on the Costs of Illegal Immigration.
Much of the problem is that the current immigrant population is made up of people with limited education. On a case-by-case basis, there’s no way to know if children born to illegal immigrants will be high- or low-income earners, but there is reason for concern.
Certainly, any hoped-for benefit is a long way off and, if the concern is the immediate cost to public coffers, then encouraging illegal aliens and their children to return home is going to be beneficial. Of course, we can talk about changing our immigration policy to one that only admits high-skilled individuals, but most activists supporting the continuation of current birthright citizenship policies are not interested in such changes.
Stock also claims, without any analysis, that Social Security would be harmed if automatic citizenship grants to children of illegal aliens were ended. But the reality is that immigration is not a solution for the problems of Social Security, as the Center for Immigration Studies explained in its video “Immigration: No Fix for an Aging Society”.
Stock also claims that denying automatic citizenship to children born to illegal aliens would “reduce the military recruiting base”. But the numbers reveal this to be a pretty insignificant matter. Nearly 1.5 million Americans are on active duty in the armed forces, and another 800,000 are in the reserves. The Pew Hispanic Center estimates that the total population of children born to illegal aliens currently in the United States is around four million. Of those, only a small fraction will meet the requirements for enlistment (e.g. age 18 or above, high school diploma). It is silly to suggest that a country with approximately 118 million people in the average military age range (18 to 45) would be unable to field a military without the help of illegal immigrants having children on U.S. soil. Recall that the United States raised a military of 16 million during World War II, a number equivalent to about 12 percent of the total U.S. population at the time. A change in birthright citizenship policy isn’t going to have much of an effect in the War on Terror. Stock’s report is designed to frighten conservatives into supporting immigration lawlessness, but the facts just don’t add up.
The report shamefully spreads misinformation about the Citizenship Clause and its history. The author writes:
Under longstanding judicial, congressional, and executive branch interpretations of the clause, the Clause confers U.S. citizenship on anyone born within the United States whose parents are subject to U.S. civil and criminal laws — which has historically meant that only babies born in the United States to persons immune to U.S. laws — such as diplomats, invading armies, or members of certain sovereign Native American tribes — have been excluded from birthright citizenship.
The claim that “subject to the jurisdiction” of the United States means “subject to police power” has no backing by the courts or the authors of the 14th Amendment. It is a fiction being spread by supporters of the status quo. As explained by members of Congress who authored the amendment, the phrase “subject to the jurisdiction of the United States” refers to a state of permanent allegiance to the United States. Sen. Lyman Trumbull (D-Ill.) noted on the Senate floor in the 19th century:
What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.
Trumbull went on to explain how this clause might apply to American Indians:
It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is “subject to the jurisdiction of the United States.”
Today, it cannot be denied that an illegal alien is, under law, a citizen of a foreign country and therefore subject to that country’s jurisdiction. An illegal alien owes at least some amount of allegiance to their home country, if not complete allegiance. They are not under any sense of the law a citizen of the United States. As explained by Thomas Jefferson: “Aliens are the subjects of a foreign power.”
A much more thorough investigation of the history of this clause is available in the Center for Immigration Studies report “Birthright Citizenship in the United States: A Global Comparison”. Suffice to say, the Supreme Court has never interpreted the Citizenship Clause as focusing on “subject to police power”, nor has the Court ever held that children born to illegal or temporary aliens are entitled to U.S. citizenship by birth. The policy was created as a result of agency decision-making and Congress likely has the power to change the policy.
In an attempt to marginalize the discussion altogether, Stock also claims that “fewer than a dozen children are born each year without U.S. citizenship”, referring to children born on U.S. soil to foreign diplomats. It is unclear how she comes to this number, but Stock made a similar claim in a paper she wrote for the Cato Institute, an open-border libertarian group. In footnote 5 she wrote the following in reference to children born to foreign diplomats on U.S. soil:
These children are allowed to apply for U.S. lawful permanent residence (‘green cards’) if they so desire. They are not recognized as U.S. citizens by the U.S. government and cannot get U.S. passports. In 2010, 13 them were approved for green cards. Some, presumably, did not apply for green cards, preferring to maintain their diplomatic immunity from U.S. civil and criminal laws (and thereby avoiding U.S. tax liability and other legal obligations).
Leaving aside the fact that the number changes from fewer than a dozen to more than a dozen, the source of the number remains ambiguous, and the analysis very problematic. Last year I investigated the process by which children born on U.S. soil to foreign diplomats are allegedly denied U.S. citizenship and found that there are no mechanisms in place to prevent such children from receiving U.S. birth certificates, Social Security numbers, and ultimately acquiring government jobs reserved for U.S. citizens. In other words, these kids can enjoy nearly all of the benefits of U.S. citizenship and still invoke diplomatic immunity in the event they break a law. I consider them to be “super citizens” who enjoy the benefits of U.S. citizenship without the burdens.
Stock notes that these children can acquire green cards (and this is true, which is a problem in itself; the Constitution bans a foreign diplomat’s child from birthright citizenship, but if he can get a green card and is then eligible for naturalization after five years, the Citizenship Clause really isn’t much of a bar, is it?) In any event, Stock’s estimate of about a dozen diplomat children being “approved for green cards” doesn’t say anything about how many were denied, nor does it say anything about how many never applied in the first place. Logically, the number of diplomat children “approved for green cards” is not equivalent to the number of children in the country “born each year without U.S. citizenship”.
Plus, USCIS considers children born to foreign diplomats to be Lawful Permanent Residents (LPR) at birth, though that was not always the case. A couple of unpublished, decades-old court decisions made this so; prior to these decisions, the government considered these children nonimmigrants. The point is that if you are automatically an LPR at birth, you don’t really need to apply for LPR status (i.e. a green card). And since an LPR becomes eligible for naturalization after five years, it seems most of these diplomat children wouldn’t bother applying for a green card since they’re already on their way to becoming full-fledged U.S. citizens. So perhaps the dozen who applied are just the few who never got the memo.
Finally, I’ve spoken with a number of different agencies and many offices within the State Department, and it is clear that the United States does not track how many children are born on U.S. soil to foreign diplomats. Contrary to Stock’s claim, we simply don’t know how many children are born each year in the United States without U.S. citizenship, but we know that all children, regardless of their situation, can become U.S. citizens at birth or soon thereafter. This was never the intent of those who authored the 14th Amendment.
No Constitutional Amendment Needed
The report raises the issue of a constitutional amendment, noting that this is the “proper” way to “change the Citizenship Clause”. Of course, no one is talking about changing the Citizenship Clause; we’re talking about properly applying the Citizenship Clause. The only judge to have addressed this issue is U.S. Court of Appeals Judge Richard Posner who wrote in a 2003 holding that the policy of granting automatic birthright citizenship for children of illegal and temporary aliens is one that “Congress should rethink” and that the United States “should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” He continued, “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it. … Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”
Who Funded the Report?
It should be noted that the National Foundation for American Policy report was funded by the Carnegie Corporation, an open-border organization described by Pulitzer Prize-winning journalist Jerry Kammer as one that has “taken on a such a strident, polarizing, and partisan character that it betrays the mission it received from its benefactor, legendary steel baron and Scottish immigrant Andrew Carnegie.” As Kammer explained in a CIS Backgrounder: “While the Carnegie Corporation claims to be committed to enriching democratic discussion on complex issues, its immigration activism has funded smear campaigns that explicitly seek to narrow the national discussion by demonizing” those who oppose illegal alien amnesty.
Jon Feere is the Legal Policy Analyst at the Center for Immigration Studies. April 2012