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Next Step for Author of AZ Employer Sanctions: Target the Babies

January 10, 2008, 4:32 pm

Russell Pearce is the Arizona legislator who authored the AZ employer sanctions law.  Remember, that's the law that requires, among other things, employers to check the immigration status of current employees using an INS system that has federal rules in place that make it illegal to use this system to... check the immigration status of current employees.  His plan is to reduce a major source of labor in the Arizona economy which, by the way, has a 3.5%-4.1% unemployment rate over the last year, the lowest level in 30 years. 

Anyway, now Mr. Pearce has decided to target babies:

The newest front in the battle over illegal immigration is dragging health-care workers into the fray.

The Arizona Hospital and Healthcare Association is trying to kill a
proposal by Rep. Russell Pearce, R-Mesa, that would require its members
to check the citizenship of patients who deliver babies at Arizona
facilities.

If neither of the parents can prove citizenship, the hospital would be barred from issuing a regular birth certificate.

Babies of parents who are here legally but not citizens also would be denied regular birth certificates.

Beyond the obvious concerns about driving moms away from medical care for their deliveries, Mr. Pearce has a teeny-tiny Constitutional issue he must deal with in the 14th Amendment:

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.

Mr. Pearce is hoping that "subject to the jurisdiction thereof" can be stretched to say that such persons do not include immigrants.  In fact, the Supreme Court does not seem to have ruled on this specific issue (corrections welcome in comments) but historically they have been extremely loath to place limits on this.  And no one except Mr. Pearce and perhaps a few of his immediate family members believes that barring citizenship to children of legal immigrants will pass Constitutional muster.  And I am pretty sure that no matter how these questions come out, disallowing birth certificates would never survive a court challenge.  I don't think the immigrants' home country would issue a birth certificate in such a case so we would be creating people without a country.

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Category: Immigration
  • http://www.timsaylor.com/ Tim

    If illegal immigrants were not "subject to the jurisdiction thereof" they would be free to commit any crime they wanted without fear of reprisal from the judicial branch, right? And I believe citizens would have that same freedom with respect to the illegal immigrants. Sounds like a great loophole for creating an anarchist nation.

  • http://www.creativedestruction.com/blog/ Sameer Parekh

    At the Claremont Institute they say that "subject to the jurisdiction thereof" is a social-contract like statement. Both sides have to "sign" the contract. Therefore I think a reasonable case may be able to be made that the phrase refers to legal immigrants, but not illegal ones. Thus you can probably bar illegal immigrant children from getting birthright citizenship. Of course Russell Pearce, nativist that he is, seems to want to prevent all immigrant children from getting citizenship, not just the illegal ones.

  • http://www.captainscomments.com Captain Midnight

    Ew. It's a good idea to strip out the ads from any copy you are quoting. It's mighty ugly to see three copies of the same ad lined up.

  • http://www.captainscomments.com/comments/592.asp Captain Midnight

    Here's part of what I've written on this subject:

    There is a key part of that sentence, and it is "subject to the jurisdiction thereof." This means that the children born of people who legally enter the U.S. and are subject to the jurisdiction of these United States are citizens. As I read it, the children of illegal aliens are not subject to the jurisdiction of the U.S. (the whole sneaking in bit) and thus are not born U.S. citizens. Here is what Rep. John A. Bingham, the author of the 14th Amendment, said regarding the first sentence:

    "I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."

    Illegal aliens who sneak across the U.S. border and have babies on U.S. soil still owe allegiance to their native land. (Indeed, if the evidence is to be believed, many illegal aliens consider themselves loyal citizens of the nations they left. This becomes painfully visible during illegal alien rallies, where one is far more likely to see flags of other nations on display than one is to see the American flag in evidence.) They have not petitioned the U.S. for entry, nor have they begun the process of becoming Americans by renouncing their former citizenship. They are therefore not subject to the jurisdiction of the U.S., since they have flouted America's laws upon entry.

    You can read a long entry on the 14th Amendment at The Federalist Blog.

  • http://grayson-for-congress.blogspot.com Richard

    You can see the caselaw on this issue on my post, "The Ghetto-Fabulous Russell Pearce v. the Constitution."

    No human beings are illegal.

  • http://malor.wordpress.com Gabriel Malor

    This came up the other day. The case you're looking for is United States v. Wong Kim Ark. It holds that the 14th Amendment requires that a child born in the United States of alien parents who are subjects of a foreign power but who have a permanent domicile and residence in the United States becomes a citizen of the United States at the time of birth.

    The year was 1898. Yes, that long ago.

    Captain Midnight (and the folks at Heritage who make the same argument) go through the most outrageous legalistic contortions to claim that "subject to the jurisdiction thereof" doesn't actually mean "subject to the jurisdiction thereof."

    The reason that these folks go to such trouble to twist the 14th Amendment out of shape is that it is probably easier to convince a judge of their ideas than to amend the Constitution on this point.

  • Craig

    The 14th Amendment was intended to make slaves, not illegal immigrant babies, citizens. If we operate on original intent, this law would pass Constitutional muster.

  • Phil

    Here is a very extensive article on the subject: http://www.vdare.com/sutherland/weigh_anchor.htm

  • nicole

    There is a key part of that sentence, and it is "subject to the jurisdiction thereof." This means that the children born of people who legally enter the U.S. and are subject to the jurisdiction of these United States are citizens.

    But there was nothing in that first sentence about "people who legally enter the U.S." Under this reasoning, since illegal immigrants are not subject to our jurisdiction we would not be able to deport them or even arrest them for committing crimes like murder. This is clearly absurd.

    Illegal aliens who sneak across the U.S. border and have babies on U.S. soil still owe allegiance to their native land. (Indeed, if the evidence is to be believed, many illegal aliens consider themselves loyal citizens of the nations they left. This becomes painfully visible during illegal alien rallies, where one is far more likely to see flags of other nations on display than one is to see the American flag in evidence.)

    You can say all the same things about legal immigrants as well. My father has had a green card since he was a child but has never chosen to be naturalized. Should I have gotten a funny birth certificate too since he "owes allegiance" to someone else (what that means for practical purposes is extremely unclear), or would my mom have made up for that?

    They have not petitioned the U.S. for entry, nor have they begun the process of becoming Americans by renouncing their former citizenship. They are therefore not subject to the jurisdiction of the U.S., since they have flouted America's laws upon entry.

    I will really have to remember this next time I feel like stealing a couple million dollars. I hope it works in other countries too.

  • skh.pcola

    Gabriel, I don't think that you ever responded to my last comment on the AoS thread. You are doing the same thing here: claim an interpretation that you disagree with is "outrageous," and you are stubbornly stuck on your idea of what "subject to the jurisdiction thereof" means.

    Here is the pertinent portion of my comment:

    Gabriel, I found this from a professor of law, who said it in testimony in front of the Committee on the Judiciary of the US House of Representatives:

    As I argued in the brief I filed on behalf of The Claremont
    Institute Center for Constitutional Jurisprudence in the case, the received wisdom
    regarding the Citizenship Clause is incorrect, as a matter of text, historical practice, and
    political theory. As an original matter, mere birth on U.S. soil alone was insufficient to
    confer citizenship as a matter of constitutional right.

    Linky: http://judiciary.house.gov/media/pdfs/eastman092905.pdf

  • skh.pcola

    Huh. Feature that. My point is that, even among the legal cognoscenti, there isn't consensus on exactly what "subject to the jurisdiction thereof" means. It is a rhetorical trick to assign labels such as "outrageous" to the opinion that anchor babies should automatically be conferred citizenship status. As ever, one's confirmation bias provides some guidance when searching for answers, and I am more convinced by arguments against the concept, while Gabriel and several others here opine in the opposite direction. As the issue becomes more pressing, Congress will have to address it, and SCOTUS will have to interpret the troublesome portion of the 14th Amendment.