This is the official transcript of the U.S. House subcommittee on Immigration, which studied, in 1997, whether children born in the U.S. of parents not legally here are citizens, according to the 14th Amendment to the Constitution. This report is found at: http://commdocs.house.gov/committees/judiciary/hju43144.000/hju43144_0.HTM. The copy here has the "meat" highlighted in red, and the irrelevant portions in a smaller font. My own editorial comment is in blue.
CITIZENSHIP REFORM ACT OF 1997; AND VOTER ELIGIBILITY VERIFICATION ACT
WEDNESDAY, JUNE 25, 1997
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2226, Rayburn House Office Building, Hon. Lamar Smith (chairman of the subcommittee) presiding.
Present: Representatives Lamar Smith, William L. Jenkins, Edward A. Pease, Ed Bryant, Melvin L. Watt, and Zoe Lofgren.
Also present: Cordia A. Strom, chief counsel; Edward R. Grant, counsel; George Fishman, counsel; Jim Wilon, counsel; Judy Knott, staff assistant; and Martina Hone, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
We appreciate the interest of everyone here in the two bills on which we have hearings today. And in that regard, I have an opening statement and then I'll yield to the gentleman from North Carolina. Then we'll begin as quickly as we can. We have six panels and we'd like to move through and finish up not too long after lunchtime.
The two bills that we'll consider today-the first is H.R. 7, the Citizen Reform Act of 1997, that was introduced by Congressman Brian Bilbray. H.R. 7 would alter the policy of birthright citizenship whereby just about every child born on American soil, including a child born to illegal aliens, is granted automatic citizenship. Mr. Bilbray's bill would extend birthright citizenship only to a child born in wedlock to parents either of whom is a citizen, national, or permanent resident, and to a child born out of wedlock if the child's mother is a citizen, national, or permanent resident.
The United States is one of the few major industrialized countries in the world which still grants automatic citizenship to even the children of illegal immigrants. England, the originator of birthright citizenship in feudal times, reversed course about 16 years ago. It is time for us to reconsider our policy of birthright citizenship. I know this is a sensitive and complex issue. Some argue, though I might disagree, that birthright citizenship is anchored in the first section of the 14th amendment to the Constitution which states that, ''all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States.'' The 14th amendment is one of the most emotion laden provisions of the Constitution, for it was written to guarantee citizenship to those formerly held in bondage and their descendants after the Civil War. But because of the very real and very deleterious effects of our present policy, change should be considered.
What are these realworld effects? Smugglers are bringing pregnant women into this country to give birth so that they can bestow upon their children American citizenship. About 16 percent of all the births taking place in California each year are to illegal alien mothers. The county of Los Angeles estimates that almost 200,000 U.S. citizens of illegal alien and amnestied alien parents living in Los Angeles are collecting $461 million a year in AFDC benefits. Even apart from quantifiable costs, isn't citizenship devalued when it is given away as a result of criminal activity?
H.R. 7 would do much to discourage illegal immigration and relieve the fiscal burden on States with high numbers of illegal immigrants and it would make U.S. policy consistent with the vast majority of countries around the world.
The second bill we will consider, H.R. 1428, the Voter Eligibility Verification Act, was introduced by Congressman Steven Horn. Citizens, and citizens alone, should be allowed to vote in Federal elections and thus to chart the course of our Nation's future. This right only belongs to those who are nativeborn or who have naturalized and taken oaths renouncing all allegiance to any other country. Congress reasserted this age old maxim last year by making it a deportable offense for an alien to vote in a Federal election. Such an act is also a Federal crime, punishable by fine or imprisonment.
But how are these provisions to be enforced? How often do aliens vote in Federal elections? Both of these questions can be answered only if those officials with responsibility for the voting rolls have a mechanism by which to ascertain who among their registered voters are, in fact, noncitizens. Representative Horn's bill, H.R. 1428, proposes such a mechanism. It would allow appropriate Federal, State, and local officials to voluntarily verify the citizenship of individuals registered to vote in their jurisdictions, providing they do not act in a nonuniform or otherwise discriminatory manner. Under the confirmation system created by the bill, the officials could have their voter rolls checked against Social Security Administration and INS records.
I know there are concerns about whether Social Security and INS data bases are reliable enough to do the job and whether they contain the necessary information in an easily-accessible format. I also know there are concerns about possible discrimination, for instance, should only registered voters with certain ethnic names be run through the system. But let's not lose sight of the purpose of this legislation. It is to protect a cherished right of American citizenship, the right to vote, from being debased and diluted.
Mr. SMITH. I recognize the gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
I want to welcome our colleague, Mr. Bilbray, here and when Mr. Horn arrives I will welcome him, too.
I will try to be as restrained as I can today, even though I don't think much of either one of these bills that we're considering. And I will tell you that at the outset, so that nobody will be surprised about it. I don't guess that anybody would have been surprised anyway.
I don't quite understand-and maybe the hearings will help us understand-how we think we can accomplish what Mr. Bilbray's bill purports to accomplish without amending the Constitution. The chairman says the 14th amendment's language is laden with emotion. I don't think so. It's pretty damn clear to me. It says ''all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.'' And I don't know how you can get beyond those provisions without doing something with the Constitution, to amend the Constitution. And, of course, you all know my attitude about amending the Constitution-so you've heard that speech many times, as my conservative colleagues have tried over the last 2 years on 118 different occasions to amend the Constitution.
So that's kind of where I start from, Mr. Chairman, and I'll try to be as cooperative and restrained as I can as we go through this process, but I just wanted to kind of put you on notice.
Mr. SMITH. Fair enough, Mr. Watt. Thank you for your comments.
The gentleman from Indiana is recognized.
Mr. PEASE. Thank you, Mr. Chairman. I apologize to members of the committee and our guests. Their are two other committees' meetings going on right now which I've been trying to attend, and because I did not hear the opening statements and don't wish to be repetitive, let me simply say that I have studied in a perfunctory way the matters that are before us today. I share some of Mr. Watts' concerns on the constitutional issues, but I am intrigued by the proposal that Mr. Bilbray has brought to us and I'm looking forward to this hearing.
Mr. SMITH. Thank you, Mr. Pease.
The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman. I'd like to ask unanimous consent to submit my statement for the record as--
Mr. SMITH. Without objection--
Ms. LOFGREN [continuing]. As well as a letter that was sent to me by the board of supervisors of Santa Clara County, which I represent and whom I served with for 14 years opposing--
Mr. SMITH. Without objection, both will be made a part of the record.
[The prepared statement of Ms. Lofgren follows:]
PREPARED STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I am very concerned about the two bills we are considering today, which I consider to be attacks on the Constitution.
For hundreds of years, our nation has subscribed to the common law precept of jus soli, which recognizes that citizenship is based on the place where a person is born. This rule was accepted as the law for our new democracy and ultimately codified in the Fourteenth Amendment and the Civil Rights Act of 1866. These congressional actions were in response to an anomalous and infamous Supreme Court decision, Dred Scott, which denied citizenship rights to freed slaves.
In 1866, during Senate debate on the Fourteenth Amendment, one legislator, Senator Conness, proclaimed, ''I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.''
I must say that I find it disturbing that we are actually contemplating a contravention of Constitutional and civil rights as expressed by the 39th Congress. I would hope that we as a country, and as elected representatives, are, if anything, more enlightened than the American society and Congress of 130 years ago.
Following its passage, the Fourteenth Amendment was interpreted by the Supreme Court as an affirmation of the traditional jus soli rule and in Wong Kim Ark v. the United States the Court held that the ''Fourteenth Amendment ... has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.'' It would be very difficult for the Court to be more clear on this point, and I think it casts much doubt on the constitutionality of any of the bills purporting to alter the right to citizenship at birth.
President Franklin Delano Roosevelt once said, ''We are a nation of many nationalities, many races, many religions-bound together by a single unity, the unity of freedom and equality.'' A bedrock principle of this equality is that all people enjoy the same rights and privileges based on their individual existence. You cannot be condemned by the government for your cultural or religious background or for anything your parents might have done. The proposals before us would do just this.
This country was founded as a nation of immigrants, and immigrants and their children have contributed much to our success as an economic and political superpower. Captains of industry, like Lee Iacocca, were born to immigrants. The parents of the former Chairman of the Joint Chiefs of Staff, General Colin Powell, came to America from Jamaica. Many of the business leaders of Silicon Valley, my home, were not born in the United States. We draw strength from our diversity, and learn from our differences.
While immigration to America entails both benefits and challenges, the melting pot that is America remains a symbol of tolerance and a model of assimilation across the globe. I find it extraordinarily ironic that many of the same people who espouse the need for us to unite under one language and one religion would seek to divide us according to the circumstances of our birth.
This legislation is also offensive because it would disadvantage some of the most vulnerable members of our society-infants. How are babies born in the U.S. different from each other? The obvious answer is that they are not.
The damage to the Constitution and to our democracy that these proposals would render by itself is reason enough to reject them. While many in our country have concerns about unlawful immigration, we should measure carefully any remedies to ensure that any remedy does not have more long term problems than the issue we are attempting to address.
However, I also believe that it is interesting to look at the practical effects that would result from the enactment of this legislation.
One result would be that many American-born, would-be citizens, would instead be rendered ''stateless,'' citizens of no country. Many countries do not automatically ascribe citizenship based on parental citizenship. For instance, the child of an American born overseas can obtain derivative citizenship through its parents, but only if she returns to claim it within a set period of time.
Therefore, a child born here to foreign parents could very conceivably be without a country, as would all of his or her descendants if he or she did not marry a citizen. These people would have nowhere else to go, and would be forced to remain here, hoping to avoid detection by the government. With policies such as these we could be creating perpetual generations of stateless, undocumented aliens. I do not see how this constructively addresses the illegal immigration problem.
Another likely outcome would be chaos in maternity wards and incredible administrative burdens for the doctors, nurses, and hospital administrators that provide obstetric care to women having babies. They would have to assist the government in establishing the immigration status of all mothers who are giving birth or have just given birth. Most women don't think to bring proof of immigration status to the delivery room. The costs and increased bureaucracy that such a system would create are obvious.
Furthermore, one can see the likelihood of suspicion and discrimination based on ethnicity, which have no place in places of birth or healing. Any woman, regardless of immigration status, should not be deterred from receiving the prenatal and neonatal care that she needs. Such policies could actually increase the cost of illegal immigration to our health care system, because, as studies have shown, we can avoid the expense of numerous premature births with much less expensive preventative prenatal care.
It also is questionable that this change in policy would have any demonstrable impact on illegal immigration. The problem of illegal immigration is serious and we need to take reasonable steps to prevent and deter it. I supported the increased border patrols established by last year's immigration reform bill, and improved worksite enforcement mechanisms that have been implemented by the Immigration and Naturalization Service. However, I seriously doubt that denial of birthright citizenship would influence most aliens, because most undocumented immigrants come to this country because of economic opportunity and to escape oppression, not to determine the citizenship status of their offspring.
Federal appellate courts have upheld the refusal of the INS to stay the deportation of undocumented aliens solely on the basis that they have minor children who are U.S. citizens, because this would grant an unfair advantage to these aliens over other aliens who obeyed our immigration laws. There is no legal benefit for undocumented parents who give birth to American children. I understand that in some border areas, it is argued that mothers sometimes make efforts to give birth in this country in order to provide an opportunity for their children. To the extent that this is a real issue, it can be addressed in a much more measured fashion than the bills before the committee-primarily through enhanced border enforcement.
Some of my colleagues have also alleged that some aliens want to have an American-born child for the purpose of eventually legally immigrating as an immediate family member once the child reaches the age of majority. I taught immigration law at Santa Clara University and was an immigration attorney for a number of years. In all my years of experience in this legal field, I never encountered the situation in which a mother planned a birth so that 21 years later her offspring could file a petition that would be approved and numerous years later result in residence for the parent. I seriously doubt that such a tactic could ever be widespread or should be the basis for such a fundamental change in our Constitution.
Similarly, I have grave concerns about H.R. 1428. Although I believe that my colleague from California, Mr. Horn, is well-meaning in his intentions, his legislation runs counter to many of the principles Americans hold dear.
The basic right of American citizenship is the right to participate in our democracy. In short, it is the right to vote. This bill implements additional barriers, tests, and devices, making it harder for citizens to vote, and conflicts with the Voting Rights Act and the National Voter Registration Act.
Further, the bill gives great discretion back to local registrars; given the history of discrimination in this arena-discrimination that led to the Voting Rights Act-I am concerned that the decision to verify citizenship will be based on skin color, accent, or some subjective determination of ''foreign-ness.''
Leaving the policy and constitutional implications aside, H.R. 1428 is simply unworkable. The INS databases are incontrovertibly incomplete, as well as being notoriously inaccurate; recent studies indicate an inaccuracy rate of at least 25 percent. The Social Security Administration's database is little better. Moreover, the inaccuracies tend to accumulate around the Asian and Latino names that are likely to be the targets of this legislation. The probability of massive error and the consequent likelihood that American citizens would be denied the right to vote are frighteningly real.
Mr. Chairman, we certainly have a strong interest in maintaining the integrity of our electoral process by ensuring that only citizens vote. Last year's immigration bill made it a felony for non-citizens to vote, and our communities have dealt with electoral fraud for, literally, centuries. We do not need this legislation to deal with voter fraud. Further, I believe that our real problem is that most actual citizens are not voting. In 1994, less than 40% of the electorate bothered to vote. The last thing we need are new barriers to voting.
As a Representative from California, I am fully aware of the burdens that illegal immigration can impose on local governments, the States, and the Federal government. However, these proposals are unconstitutional and contrary to the traditions of our republic. I believe they would also have almost no effect on the illegal immigration problems they seek to address. I hope that we will abandon these efforts and look for real solutions to the problems that confront us.
Ms. LOFGREN. I will also endeavor to be restrained in the course of this debate, but I join with my colleague, Mr. Watt, as well as the Justice Department, in observing that Mr. Bilbray's bill is, in fact, unconstitutional. And I do understand-Brian and I have had an opportunity to talk about this issue privately, as well as in public-we have a disagreement over the substance of where we should go, but I think it's abundantly clear that we may not go in this direction, absent a constitutional amendment.
I also have concerns about the voting provision that I hope we will also be able to go through. I think we all want to make sure we have a system with integrity, but we need to do so in a way that does not deter or make more difficult the participation of U.S. citizens in our democracy. So I'm eager to sort through that with the committee.
And with that, I yield back the balance of my time.
Mr. SMITH. Thank you, Ms. Lofgren.
Now we will go to our first panel, consisting of Congressman Brian Bilbray of California. Brian, you are an expert on this bill. We have talked about it for a number of years and we look forward to your testimony.
STATEMENT OF HON. BRIAN P. BILBRAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. BILBRAY. Thank you, Mr. Chairman. Mr. Chairman, I will try to be restrained, too, and stay within civil discourse. [Laughter.]
I would only ask my colleagues to try to keep an open mind until such time as you have received all the evidence and points being made. I think we all agree that perceptions may not be reality. For 60 years in this country people thought segregation was constitutional. And I think we may be discussing an item now that wellmeaning and wellinformed people can discuss and be enlightened by both sides on this. And I would just ask you that you keep an open mind and take a look at the evidence we have presented to you today.
Mr. Chairman, I'd ask for unanimous consent, first of all, for my full written statement to be entered into the record and the statement by Congressman Beilenson of California in the last hearing, because I think it reinforces a lot of the practical application issues in this one.
Mr. SMITH. Without objection, both will be made a part of the record.
Mr. BILBRAY. I appreciate your holding this hearing on H.R. 7 and I appreciate the fact that your staff has helped to bring people out from the west coast. California so often feels sort of left out of the process and the logistical problems are tough.
Mr. Chairman, my lifetime experiences have led me to H.R. 7, the Citizenship Reform Act of 1997. After World War II, my mother immigrated into this country as a legal resident and was naturalized here-in fact, was the first ''war bride'' to do such after World War II from Australia. I grew up in a family where the stories of my mother being quite emphatic that she wanted to be on U.S. soil when she gave birth to her children-basically, was a very strong statement about the right and the privilege of birthright citizenship.
I grew up along the Mexican border and I live today within sight of the international boundary with our neighbor to the south. As a citizen, as the mayor of a city along the frontier, as a county supervisor that served the poor and needy of our community, and now as a Congressman, I've witnessed firsthand, basically, the problems and the costs of illegal immigration, and, basically, the inconsistency of the Federal Government's handling of the issue and, frankly, the unfairness and the absurdity of the way it's been handled. As a mayor and county supervisor, I dealt with the problems of illegal immigration and the issue of illegal immigrants coming and giving birth in U.S. hospitals and then turning to the automatic citizenship clause as a vehicle to gain access to public benefits in the United States.
You will hear testimony from Supervisor Pam Slater today about the firsthand experience of what really is going on in the streets of the United States, specifically in San Diego.
Now, I do not blame the women or the illegal immigrants for this issue. It is only logical that if there is an opportunity to be able to drive through this gaping hole in our legislation, then anybody would do that. The problem here is the fact that the Federal Government, and Congress specifically, as defined in the fifth section of the 14th amendment, bear the responsibility of statutorily enforcing the intention of this legislation and this constitutional act. It is the lack of Congress specifically addressing this that needs to be addressed.
You will hear from a legal immigrant who's really pointing out one of the items that my mother always pointed out, and that is the inherent unfairness of the existing policy-the unfairness of rewarding somebody for breaking immigration law while punishing those who are waiting patiently to play by the rules, the unfairness of telling somebody who is following the laws that their child does not get automatic citizenship, while they watch people break the laws, break the rules, and violate our national sovereignty and receive a very, very cherished possession: U.S. citizenship.
Now, I think that I would like to point out that our colleague-former colleague-Mr. Beilenson, though he had served many diverse parts of the community, specifically stated that the situation that we are addressing, the automatic conferring of citizenship on children of people who have entered our country in violation of our law, is so unfair and untenable under the 14th amendment-unintentional when the 14th amendment was adopted-that it, I believe, and according to him, is one of those compelling reasons for amending the Constitution. Now, I will discuss the item of why the Constitution doesn't have to be specifically amended, but I think that Congress Beilenson's statement was ''there is no a mean spirit here; it's a fairness issue; it's a common-sense issue.''
Now, Congress must act, because specifically under the 14th amendment it is Congress who is given the responsibility under this section. Now, Senator Howard, the author of the 14th amendment, repeatedly stressed the fact to the Senate that there was a clause to the automatic citizenship and that clause was ''subject to the jurisdiction thereof.'' Dr. Erler later will testify specifically on the importance of that issue, but there are those in this country who would totally ignore that conditioning clause. And I would say to those who claim to defend the Constitution that every word, every comma of the Constitution has force. And if you ignore one word of the Constitution, you are de facto ignoring the Constitution as a whole.
Now, the Supreme Court has made major rulings. Mr. Chairman, the rulings of the Wong Kim Ark case-I'd like to point out that there were issues addressed; Congress has acted. And if you give me-just a point: Native Americans were not given automatic citizenship under the 14th amendment. Now, I ask any Member here, do you really think that it's logical and fair to think that you did not give-the 14th amendment did not give-automatic citizenship to Native Americans on U.S. soil, but gives the children of illegal aliens such a treatment? I don't think our Founding Fathers or the American people in any way justify that kind of split treatment.
[Ed: wait a minute! Are Native Americans even born on U.S. soil, who are born on their reservations? Reservations are sovereign mini-nations, not subject to many of the laws of the United States!]
In fact, in 1870 the Winnebago Indians were given citizenship by Congress, not by the 14th amendment. The Indian Territorial Nationalization Act of 1890 broadened the act to give citizenship to Indians and it wasn't until 1924 that Congress, not the 14th amendment, gave all Native Americans born in the United States automatic citizenship. It was not the 14th amendment; it was actually Congress. Now, that case has been ruled by the Wong Kim Ark case, where the Supreme Court ruled substantially.
Now, getting back to this issue of ''legal'' and ''illegal,'' the Wong Kim Ark case will be addressed in saying that it shows everyone born on U.S. soil is automatically a citizen. Now, I want to point out, Mr. Chairman, that the Wong Kim Ark case was a case of ''legal'' resident aliens, and was specifically identified as legal. The reference to the Calvin case, the British common law case, by the courts on the Calvin-on the Wong Kim Ark case, specifically made reference to the fact that if you are legally in a country under an unwritten contract of loyalty and obedience, then you have an obligation of loyalty and obedience; thus, your children have the right of automatic citizenship.
But to claim that you can have the right of automatic citizenship without the obligation of loyalty and obedience is absurd and contrary to British common law and contrary to the ruling case, Wong Kim Ark, which you will hear opponents of my legislation specifically address. The Supreme Court has never ruled on the children of illegal aliens getting automatic citizenship. They have only ruled on legal aliens, and, as I said before, they made reference to the status of being a resident alien.
[Ed: keep in mind that in 1868, when the 14th Amendment was enacted, there was no such thing as an "illegal alien". There were no quotas, and no one at the borders to check papers and hold back those unapproved by the USCIS. Not until 1875 were the first quotas.]
Mr. Chairman, I think it's perfectly clear that my legislation will affect those who feel that the status quo is fine and let's maintain it. I think it will invoke emotions. But let me say, as I said before, segregation invoked emotions, too. For 60 years, people claimed it was constitutional. And I think we've proven that standing up and saying, hey, let's take another look at this, proved out to be the right thing to do. I ask that we not make the same mistake and that we make the same-we move forward away from the assumption that just because this is the way it's always been, it's the way it always should be, and do what the people were willing to do decades ago with segregation and be willing to have the guts to look at it and say, ''Is it right? Is it appropriate? And is it constitutional?''
And if you look at this and address it properly, I think you'll come to the conclusion that the Constitution is based on commonsense approaches to human experience, and it is irrational and immoral to punish somebody for playing by the law, and playing by the rules, and doing the right thing, and rewarding those who have broken the law and violated our national sovereignty at the same time.
Thank you again, Mr. Chairman, and I appreciate your leadership on this issue.
[The prepared statement of Mr. Bilbray follows:
PREPARED STATEMENT OF HON. BRIAN P. BILBRAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, before I begin, I'd like to ask unanimous consent that my full written statement be entered into the record.
Thank you, Mr. Chairman, for holding this important hearing today and allowing us the opportunity to discuss my bill, H.R. 7. I appreciate your help, and that of your staff, in putting together the witness panels and assisting our West Coast witnesses with their arrangements.
Many lifetime experiences have led me to introduce H.R. 7, ''The Citizenship Reform Act of 1997.'' After World War II, my mother, the first Australian ''war bride'' ensured that my older brother and I were born on U.S. territory to guarantee our U.S. citizenship. I grew up along the U.S.-Mexican border. My family and I live within eyesight of the border of the U.S. and Mexico. As a citizen, mayor, county supervisor and now Congressman, I have witnessed first-hand the human cost of illegal immigration confronted by our communities on both sides of the border.
As a mayor and county supervisor, I've dealt with the problems of illegal immigrant mothers coming over to U.S. hospitals to have their babies, who in turn become automatic U.S. citizens and are therefore eligible for county, state and federal social services. We've all heard the alarming statistics. We are fortunate to have San Diego County Supervisor Pam Slater here today who can share her insight on this issue.
I do not blame these women for wanting to provide the best possible health care for their babies. Nor do I blame them for wanting to provide better opportunities for their family and wanting their children to be U.S. citizens. Thousands of people, every year, patiently go through the time consuming naturalization process to receive the privilege of becoming a United States citizen. In a few moments, you will hear from Ms. Gwat Bhattacharjie, who went through this process.
It is out of fairness for these thousands of people, like my mother, like Ms. Bhattacharjie, who follow and respect our laws, that we must pass H.R. 7. While the automatic granting of citizenship clearly serves as a strong incentive for illegal immigration, the fact remains that such practice amounts to a reward for entering this country in violation of our laws. That is fundamentally unfair, and clearly an unintended consequence to the 14th Amendment.
Our former colleague, Mr. Beilenson, recognized this unfairness and put it quite eloquently during last year's hearing on this issue. And I quote, ''We are a Nation that has taken great pride in expanding the civil rights of groups of people through the years. The notion of denying an existing right to any class of people, no matter how sensible it may be, is something that goes against our nature as Ameri-cans.... However, the situation that we are addressing-the automatic conferring of citizenship on children of people who have entered our country in violation of our laws-is so unfair-and unintended when the 14th Amendment was first adopted-that it does provide, I believe, one of those rare compelling reasons for amending the Constitution.'' I, too, believe this case is compelling, though, I believe we don't need a constitutional amendment to fix this problem. I encourage you all to review Mr. Beilenson's testimony from last year and ask that his statement be entered into the record.
Opponents of H.R. 7 talk about how this bill would create a separate class of people. Mr. Chairman, that is already going on now with the current and inaccurate interpretation of the 14th amendment. As Mr. Beilenson pointed out last year, the current situation favors children of one illegal family over another. If a mother and father comes over illegally with a young child, that child does not have citizenship. But if a similar young mother and father come across the border illegally and give birth to a child, that child is a citizen. There is no legitimate reason for that distinction between those two families, those two children.
Congress must act now. Some would argue that Congress does not have the authority to act on its own and that a constitutional amendment is required. I disagree. Though I may be wrong, we have to at least try to resolve this problem statutorily. If I am wrong, the courts will strike it down. I don't think they will. Also, reading the transcripts of the debate on the Senate floor by the authors of the 14th Amendment, their intentions were quite clear-Congress has the authority to clarify and define citizenship and that citizenship is not necessarily granted simply because you are born here. Senator Howard, author of the 14th Amendment, repeatedly stressed this fact during the debate. Hence, the clause, ''subject to the jurisdiction of.'' We have Dr. Edward Erler here who will further examine this important issue.
Obviously, there are exceptions to birthright citizenship. Congress has employed these constitutional powers in several cases. It clarified and legislated citizenship status for native Americans in 1870 with the Winnebago Indians in Minnesota, by permitting them to apply for citizenship with the condition that the Indians cease to be members of the tribe. The Indian Territorial Nationalization Act in 1890 broadened the earlier Act by allowing any member of any Indian tribe or nation residing in Indian territory to apply for citizenship. From 1854 until 1924, citizenship was a common Government incentive to encourage assimilation of Indian persons. Congress' authority to nationalize Indians was also sustained by the courts in the case of Elk v. Wilkins in 1884 and the U.S. v. Celestine in 1909. These cases were important for two reasons-first it reaffirmed Congressional authority, and second, it limited the notion of birthright citizenship. Because it was perceived that Indians owed their allegiance to their tribe, not the U.S., they were therefore not under the obedience of the U.S. Therefore, they were only to be granted U.S. citizenship by an act of Congress. Congress did this in 1924.
The McKay v. Campbell case specifically said that to be a citizen of the United States by reason of birth, a person must not only be born within the territorial limits, but he also must be born ''subject to the jurisdiction,'' meaning the power and obedience of the United States. Clearly, a person who breaks our laws in entering our country is not ''obedient'' to the United States.
[Ed: this is a classic of irrationality. If governments had "jurisdiction" only over those "obedient" to it, then by definition, law breakers would not be under the "jurisdiction" of the government, so without jurisdiction, no government would have any right to enforce any law!]
Some have also cited the Wong Kim Ark case as legal precedence for the granting of automatic birthright citizenship, and why a constitutional amendment is necessary. This case actually supports my point in H.R. 7. Let me point out that Mr. Ark was born in the U.S. by parents who were here legally.
H.R. 7 does not challenge any of these cases. Children born of legal residents are granted U.S. citizenship under H.R. 7. In fact, no Supreme Court case has ever been tried involving illegal immigrants. Illegal immigrants just didn't exist during the debates of the 14th Amendment because we did not have any immigration laws at that time.
[Well, then, doesn't that further raise the question whether immigration laws, and especially quotas, which treat people so differently, can be "Constitutional" under the 14th Amendment? I think what he has just said is that no Supreme Court case has yet addressed the constitutionality of our immigration laws.]
Mr. Chairman, I want to make it perfectly clear, my legislation only affects those who break our laws and enter our country illegally. It's simply an attempt to bring fairness to a highly emotional and complex issue. For 60 years, the absurd notion of segregation was accepted as constitutional, but eventually was overturned. Let's not make the same mistake in the name of the Constitution.
Again, thank you, Mr. Chairman, for your leadership on the whole issue of reforming our immigration laws. I look forward to working with you in bringing H.R. 7 to the floor of the House.
Mr. SMITH. Thank you, Mr. Bilbray. I think you pointed out in your testimony how close you live to the border. So far as I know, you are the only Member of Congress who can actually see the border from your own home, and that does give you a special perspective.
Several points that you made, I want to followup on. The first being, and I think it's important to restate, the problem is not the people. If we were in the shoes or boots of the people who lived in other countries, we'd want to come to America, too. This is still the country of the greatest economic opportunity, the greatest freedom, in my opinion, of any country in the world. So we can't blame the people.
What we can blame is the policies that attract them or provide an incentive for them to come to this country. Now, I think it's instructive to point out that of the industrialized countries in the world, few have a policy where the children of illegal aliens or illegal immigrants are automatically deemed to be citizens. And of those two are in the process of reconsidering. So I think you have at least world opinion on your side.
[If you wanted to overthrow our Constitution and replace it with a dictator, you would have world opinion on your side, too.]
The Department of Justice will testify in a few minutes and make two points. And I want to ask you to respond a little bit further on one and then expound on the other one as well. The major point uses the Wong Kim Ark case as a case to justify the current interpretation of the 14th amendment. Now, you have already pointed out that that case dealt with legal immigrants, not illegal immigrants. So I think that that's a major source of distinction. Is there anything else you wanted to say on the subject?
Mr. BILBRAY. Well, I think the Wong Kim Ark and the Supreme Court ruling really made it clear that it's not just the ground-that there has to be an allegiance and obedience tied to it. And I think the quote that I'd like to refer to, it says that the locality of a man's birth-it was saying that the person's birthright, in theory at least, depends not upon the locality of the man's birth, but upon his being born within the jurisdiction and allegiance of the King of England. And it might be, the fact is, it might occasionally happen that a person was born within the domain and without being born under the allegiance.
[What's the point, anyway? Is anyone alleging the mothers who careen across the border as their contractions begin, still have any allegience to Mexico? If they did, explain their willingness to risk their lives in a dangerous border crossing while they are 9 months' pregnant? If they still had allegience to Mexico, these Congressmen wouldn't be worried about them!)
Now, that was based-that was our Supreme Court ruling. Now, what it was based on was the Calvin case, which was 1608, which ruled that Calvin was a citizen because his parents owed allegiance, could be tried for treason. And the way they-this is how the British said it in 1608 and I wish we were as poetic. It says, ''neither the climate nor the soil, but the loyalty and the obedience that make the subject born.''
So I think that it's quite clear that when we get into it-is that, when you get into that, is the cases were based on you must serve loyalty. And I would ask any member here, is there an obligation of loyalty to an illegal alien?
I would ask my colleagues who oppose this legislation, what would be your reaction if the Federal Government tried an illegal alien for treason? I think we all agree that illegal aliens bear no responsibility of loyalty. They do not, they could not, and should not be tried for treason. Based on the British common law, as reinforced by the Wong Kim Ark, that if the parents cannot be tried for treason, then the parents have no obligation; thus, the children have no automatic citizenship right. That is the major determining factor. Let me point out that legal immigrants can be tried for treason, do have obligation to serve their country while they are temporarily in the country.
[Clever point, but flawed because the only thing illogical about trying them for treason would be the hypocrisy of a government which does everything it can to deny their legitimate status, then prosecuting them for not honoring their legitimate status. In other words, it would be illogical because of the government's disloyalty to "illegals", not because of any lack of loyalty by "illegals". In other words, if our criteria for determining who is "subject to our jurisdiction" is now to be one's individual loyalty to the government, then the irrationality of trying illegals for treason is irrelevant.]
Mr. SMITH. Mr. Bilbray, I'm going to try to squeeze in a couple more questions here. The Department of Justice will also argue that illegal aliens are, under the language of the 14th amendment, ''subject to the jurisdiction thereof.'' Explain a little bit more why illegal aliens would not be subject to the jurisdiction of the United States.
Mr. BILBRAY. ''Subject to the jurisdiction thereof'' has two conditioning clauses. One, the laws must apply; second, loyalty needs to be required. Indians of the United States could be brought into court and tried for crimes. They could not be tried for treason because their loyalty was to the tribe, not to the United States. You've got to have both, and if you go through these cases, you'll see they will refer to them both constantly, and that is why Indians did not get automatic citizenship, Mr. Chairman, and that is why illegal aliens should be, because, again, you cannot break the nexus between obligation and rights, responsibilities and rights.
[Ed: This is a bit sloppy terminology. He surely does not mean "two conditioning clauses", since no such clauses exist in the 14th Amendment; but that the clause is based on two assumptions, in the dicta of the Supreme Court. "Dicta" is a word meaning the logic presented in a Court opinion, which is not particularly binding in other cases; by contrast, the ruling itself is what is binding. As Senator Howard pointed out, ambassadors' children born here are not citizens, because ambassadors have "immunity" from our laws. Unauthorized immigrants certainly don't! If the Supreme Court indeed thinks loyalty is relevant, which seems absurd for the reason I gave above, that is useful in anticipating whether the Court today might reverse a change in the law, but is not useful in understanding what the 14th Amendment originally meant. But even if it were, how can anyone say unauthorized immigrants have no loyalty to the U.S.? They are just as loyal as our government will allow them! They have little loyalty to any other government! Or, I should say again, those that do, aren't the concern of Congress anyway. Those are the ones who will go back again.
Mr. SMITH. Mr. Bilbray, some people would suggest that if we do not allow the children of illegal alien parents to become citizens, we will create a class of individuals in this country that will be in sort of a suspended state of existence. What's your response to that?
Mr. BILBRAY. Well, if anybody had any practical knowledge like some of us that have worked with these problems, you would recognize that you're actually creating that right now. You have families-you have families that have had children outside the United States that were not in violation of immigration when they were born. They came into this country illegally. You have other ones who have brought their children, who have come in and given birth within the United States. When the parents are being deported, you now have a class of citizen who is now split from their parents, because there is now no nexus based on citizenship.
So now you have one family where they did not, basically did not give birth within the United States; they are being deported as a unit. Now you've got the situation where you're creating a new class with the existing law, Mr. Chairman. So this argument of creating an underclass one way or the other, that is a whole issue separate from specific citizenship of the fact that our absurd immigration policies of the past have created absurd situations. And all this legislation is trying to do is correct an absurd situation.
[Ed: This is a pretty weak answer. The condition of an individual with no citizenship in any country is way more serious than the mere disparity of enforcement of deportation. Besides, he makes it sound as if he is more compassionate in wanting to deport the entire family of every illegal, rather than the existing system of not deporting citizen children and their mothers. Also he makes it sound as if, when mothers and their citizen children are allowed to stay, that they are being forcibly separated from fathers and siblings; that they couldn't leave with their fathers and siblings if they wanted to!]
Mr. SMITH. Thank you, Mr. Bilbray.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman.
Let me, first of all, take issue with one thing that Mr. Bilbray said and one thing that the chairman implied. This notion that because there are some problems and costs associated with the Constitution, we ought to be doing something in violation of the Constitution, is just one that I cannot accept. I mean, there are problems and costs associated with just about every single provision of the U.S. Constitution. There are clearly problems associated with the first amendment and the second amendment, and the third amendment, and the fourth. I mean, you just go on and on and on. So, you know, the notion that there is some obligation to respond because there are problems and costs associated with honoring the Constitution is just one that I can't down.
Second, the notion that the chairman advanced and that Mr. Bilbray advanced in his statement, or at least implied, that the rest of the nations of the world are moving in some direction, and, therefore, world opinion is on your side of this issue, simply is not persuasive, in my opinion. Our Constitution is not subject to world opinion. And if it is, then the way to make it subject to world opinion is to change the Constitution, not to just go and pass a statute that clearly flies in the face of the Constitution.
So I just don't-I have some problem with that. And I just wanted you to know that those two arguments simply don't carry much weight as far as I'm concerned. What does carry some weight, Mr. Bilbray, is your proposition that every word in the Constitution should be interpreted to have some meaning, and actually I've always been a proponent of that. I'm one of the-probably in this Congress, one of the strictest readers of the Constitution. And, typically, I think that words are not put there if they don't have some meaning. And I do think that ''subject to the jurisdiction thereof'' in this context probably has some meaning, and I don't know what it is. I'm not even going to try to advance what that meaning is. But I would say to you that the Supreme Court has not agreed with you on this proposition, and your notion that the Supreme Court has never ruled on the children of illegal aliens is just contrary to the case of Plyler v. Doe. And unless you can tell me something about that case that distinguishes it-maybe I'm missing something. And they took that little phrase on pretty directly in that case. So, I mean, how are you distinguishing that case?
Mr. BILBRAY. The way I'm distinguishing it is the issue here is birthright citizenship, not necessarily access to services, not necessarily States' ability to interpret in one way or the other. And I need to-let me clarify that my argument here, Congressman, is not that we need to change or ignore the Constitution for monetary reasons. My argument is-by ignoring every word in the Constitution or one phrase in the Constitution, it is costing undue hardships. Mine is to protect the Constitution and defend it.
Mr. WATT. Wouldn't a better route for this, if what you're saying is true, that the Supreme Court has not ruled on it, be to try to get the Supreme Court-get a case before the Supreme Court and have the Supreme Court interpret what this statutory-I mean, what this constitutional language means? I mean, they might agree with you. You know, this bill may be totally unnecessary, if that's the case.
Mr. BILBRAY. Mr. Congressman, we are the legislative branch. I would ask you--
Mr. WATT. We can't overrule the Constitution, I mean--
Mr. BILBRAY. And we can't. And the process is for us to statutorily address the issues as identified in the fifth section of the 14th amendment, just as Members of Congress had modified their approach to Native Americans. Now, I would just ask you--
Mr. WATT. But there's a whole history from Native Americans. I mean, the theory was there that Native Americans were in separate nations. I mean, it's a crazy theory, I agree with you. I mean, it's just insane that we could just-but, you know, that's what people were doing all along the way. They were making up these rules and kind of making distinctions without differences. The theory was that they had created separate nations for Native Americans.
Mr. BILBRAY. So you think that if we took it to the Supreme Court now, they would rule that the 14th amendment did give citizenship?
Mr. WATT. Oh, I don't-I think it's academic now.
Mr. BILBRAY. I think it's not academic when you talk about illegal aliens now.
Mr. WATT. Well, it's not academic, but to liken this to Native Americans doesn't solve the illegal immigrant problem. I mean, there's at least a professed rational basis for dealing with Native Americans that way. I didn't necessarily agree with it. I think it's insane, but, you know, I thought telling me that black people weren't citizens or were two-thirds of a citizen, or whatever, I thought that was insane, too.
Mr. BILBRAY. The 14th amendment didn't do that.
Mr. WATT. You know, there is at least was some process for dealing with that, and, you know, I don't think you get there the way this bill gets you there. Maybe you do get there. If the Supreme Court rules that way, then it seems to me that we either amend the Constitution to put it back, or we leave it like it is, and the Supreme Court has already interpreted and your legislation is not needed.
Mr. BILBRAY. I would just point out, no case before the Supreme Court has reversed the finding of Wong Kim Ark, which specifically made reference to the British common law, that when you allow someone in legally into your country, there is an unwritten contract of loyalty-that in that Calvin case, and referred to in the Wong Kim Ark, that those who occupy or enter the country without permission of the sovereign, do not fall under that category, and that their obligations and their rights do not apply equally with those who are legally in the country or those who are citizens. And that's all I'm saying, Congressman, is that there is an issue here; that we've ignored this problem for so long, we just sort of assume it was there. And that the ''subject to the jurisdiction'' was just a phrase that did not bear any weight. It bears lots of weight.
[Ed: Hmmm. "When you allow someone in legally into your country, there is an unwritten contract of loyalty...[but] those who...enter the country without permission...do not fall under that category...their obligations and their rights do not apply equally...." Well, the logic is backwards, applied to unauthorized immigrants today. Because if you invite someone and they come, that is no particular evidence that they are loyal to you; but if someone comes whom you don't invite, just because they admire you and want to be near you and help you, that is evidence of loyalty.]
And if you listen to Senator Howard's debate on the House-I mean, on the Senate floor, it bears very much a lot of weight. And you may not agree with it in situations like this with the Indians, which I may agree with you on-you may see the Indian issue absurd and you may see this as absurd, but what I'm saying is the Constitution was defined and has been defined that way ever since it was adopted.
Mr. WATT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
The gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
I confess it's been a while since I sat for the bar and I haven't studied-restudied-my constitutional history, but my understanding of the major context of the adoption of the 14th amendment was in the context of the abolition of slavery. I'm wondering if you can share with us some of the historical context of illegal immigration in the United States when the 14th amendment was adopted.
Mr. BILBRAY. The fact is illegal immigration and the concept of it didn't exist. The only thing that existed at that time was the concept of ''enemy alien,'' which was perceived as somebody who came into the jurisdiction without the permission of the civil authorities. And the 14th amendment was specifically addressed for those who had-stated by Senator Howard, and reinforced by Senator Trumbull at that time, was these are people who are on U.S. soil because we want them to be here. In fact, they were forced to come. We have chosen for them to be on U.S. soil. With that authority to have them here, we owe them an obligation to give their children citizenship. Congressman, that doesn't sound like illegal immigration to me.
Mr. PEASE. Thank you very much.
Mr. SMITH. Thank you, Mr. Pease.
Ms. LOFGREN. I'll be very quick because we have a vote on and I know that the Congressman and I have had an opportunity to discuss this in the past and we simply disagree. But I will say this: that I think that the fact that illegal immigration was not a motivator for the 14th amendment, although an interesting historical fact, is not dispositive as to the meaning. Clearly, equal protection was never intended to apply to women, but it does. And I would just note that there is a whole series of cases that I think shed light on the meaning of ''subject to the jurisdiction.'' I mean, if you are here without legal documentation and you steal something, you're subject to the jurisdiction of the laws of the United States for purposes of criminal prosecution. If you're a diplomat and you steal something, you are not. And the cases, I think, are very clear that that is the distinction made in the 14th amendment. I know Mr. Bilbray disagrees, but I think the cases are abundantly clear.
I would say beyond going into the legal issues-and I know the Justice Department will at some length-that the impact, I believe, for our society, aside from the unconstitutionality of the act, is not positive. And I say that as someone who is from California, born and raised there, who served on the board of supervisors in Santa Clara County for 14 years. I do know that there are some burdens to county government and to California for unlawful immigration. I oppose unlawful immigration. However, there are burdens to upholding our Constitution and there is great benefit in rewarding and celebrating the Americanization of people who are born in our country. That is why the board of supervisors in my county strongly oppose this legislation, and I think there are many local governments who join in that opinion.
I know that we are all concerned about money and that San Diego County, because of its proximity to the border, has burdens that are different than those counties more to the north. And we discussed that when Brian and I were-or Congressman Bilbray and I were-supervisors together in California. And yet we may not distort or harm our Constitution for merely financial reasons and I would note that if we wanted to be prudent with funding, if we wanted to further compensate the counties of California, as I believe we should, we could have used the $27 billion we blew on Monday on planes that the Pentagon doesn't even want.
And with that, I would yield back the balance of my time.
Mr. SMITH. Thank you, Ms. Lofgren.
Mr. Bilbray, thank you for your presentation.
The subcommittee will take a 15-minute recess while we go vote and we will return and pick up with the second panel.
Mr. BILBRAY. Thank you, Mr. Chairman.
Mr. SMITH. Thanks, we'll now reconvene. Mr. Watt and I have come back from a vote. We have another vote immediately after this one, so what we're going to try to do is to begin and conclude panel two.
Panel two consists of Dawn Johnsen, Acting Assistant Attorney General for Office of Legal Counsel, U.S. Department of Justice. Ms. Johnsen, we welcome you and look forward to your testimony.
STATEMENT OF DAWN E. JOHNSEN, ACTING ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Ms. JOHNSEN. Thank you. Mr. Chairman, members of the committee, I appreciate the opportunity to testify on behalf of the Department of Justice on the issue of birthright citizenship. I would like to rely on my written submission for a more thorough treatment of the issue and ask that it be made part of the record, and at this time only outline briefly why the proposed legislation, in our view, is plainly unconstitutional.
Throughout our Nation's history, the fundamental legal principle governing citizenship has been that those who are born within the territorial limits of the United States are U.S. citizens. The Supreme Court departed from this common law principle in its terribly misguided decision in Dred Scott. Our Nation then suffered a brutal civil war, following which we enshrined the common law principle in our Constitution to guarantee citizenship to those born in the United States. The 14th amendment, adopted to overturn Dred Scott, unequivocally declares that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States in the State wherein they reside. Most important for our purposes today is the phrase ''subject to the jurisdiction thereof.''
Because H.R. 7 seeks to deny citizenship to certain children born in the United States by defining this jurisdictional phrase to exclude those born to parents who are not themselves citizens or permanent resident aliens, such a bill would be flatly unconstitutional. Congressman Bilbray, of course, is right when he says that we must interpret all words in the Constitution to have meaning. So the question is, what is the meaning of that phrase ''subject to the jurisdiction thereof?''
We know the answer to that question from the legislative history of the 14th amendment and from governing Supreme Court case law. The 14th amendment's use of ''subject to the jurisdiction thereof'' does nothing more than incorporate four well-defined exceptions to the rule of American birthright citizenship. Three of those exceptions are as old as the common law rule itself. By common law, children born to foreign diplomats, on foreign ships, and to any occupying forces were consistently deemed not fully subject to the sovereign and, therefore, not citizens by birth.
The final exception captured by this phrase, in some sense related to the others, was that of children born to American Indians who were recognized as owing direct allegiance to the tribes of which they were members. Individuals in these four categories were deemed to have varying claims of exemption from the rules governing the American polity and, therefore, were excluded from the rule of automatic citizenship.
Aliens, in contrast, whether temporary or permanent, legal or illegal, do not enjoy any comparable claim of not being subject to the full jurisdiction of the United States. To the contrary, as the Supreme Court said in Wong Kim Ark, and I quote: ''It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides ... [and] owes obedience to the laws of that government and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.'' As Wong Kim Ark further explains, the alien's, ''allegiance to the United States is direct and immediate and, although ... continuing only so long as he remains with in our territory, is yet ... strong enough to make a natural subject, for if he has issue here, that issue is a natural-born subject.''
Thus, in determining whether one is ''subject to the jurisdiction'' of the United States for purposes of the 14th amendment, the relevant question is whether that person owes obedience to the United States, not, as some have suggested, whether the person or his or her parents in fact obeyed or violated U.S. law.
The Supreme Court's exhaustive analysis in Wong Kim Ark makes clear that the only exceptions to the constitutional rule of birthright citizenship are the three common law exceptions and, the ''single additional exception,'' of children of members of Indian tribes. The 14th amendment guarantees U.S. citizenship to all other children born in the United States.
In conclusion, we cannot and should not try to solve the difficult problems surrounding illegal immigration by denying citizenship to persons whose claim to be recognized as Americans rests on the Constitution and over 200 years of history. We stand ready to continue to work with the committee on legislation to address these important issues in a manner that is consistent with the Constitution.
[The prepared statement of Ms. Johnsen follows:]
PREPARED STATEMENT OF DAWN E. JOHNSEN, ACTING ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Chairman Smith, Members of the Committee,* throughout this country's history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship. As Justice Noah Swayne wrote in one of the first judicial decisions interpreting the Civil Rights Act of 1866 (''1866 Act''):(see footnote 1) '' 'Citizens' under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.''(see footnote 2) When Justice Swayne wrote these words, the nation was only beginning to recover from a great civil war sparked in no small part by the Supreme Court's tragically misguided decision in the Dred Scott case.(see footnote 3) That decision sought to modify the founders' rule of citizenship by denying American citizenship to a class of persons born within the United States. In response to Dred Scott and to the Civil War, Congress enacted the 1866 Act, and Congress and the States adopted the Fourteenth Amendment in order to place the right to citizenship based on birth within the jurisdiction of the United States beyond question. As a result, any proposed provision of law, such as the ''Citizenship Reform Act of 1997'' (H.R. 7), that purports to deny citizenship by birth to persons born within the jurisdiction of this country would be unconstitutional on its face.
* In December 1995, Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, provided substantially similar testimony to this Committee and the Subcommittee on the Constitution of the United States House of Representatives Committee on the Judiciary concerning proposed legislation to deny citizenship at birth to certain children born in the United States.
The stated purpose of H.R. 7 is ''to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens.'' Section 3(a) of the bill would amend section 301(a) of the Immigration and Nationality Act, which grants U.S. citizenship ''at birth'' to all persons ''born in the United States, and subject to the jurisdiction thereof.'' Specifically, section 3(a) proposes to define the phrase ''subject to the jurisdiction thereof'' to include only children born to U.S. citizens or permanent resident aliens.
This proposed legislation is unquestionably unconstitutional. The Fourteenth Amendment declares that ''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.'' The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants.(see footnote 4)
The phrase ''subject to the jurisdiction thereof'' was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes. Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and Attorneys General for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark,(see footnote 5) there is no question that they possess constitutional citizenship under the Fourteenth Amendment. Affirming the citizenship of African Americans that Dred Scott had denied, in 1862 President Lincoln's Attorney General wrote an opinion for the Secretary of the Treasury asserting ''[a]s far as I know ... you and I have no better title to the citizenship which we enjoy than the 'accident of birth'-the fact that we happened to be born in the United States.''(see footnote 6)
While the Constitution recognized citizenship of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by the common law, which conferred citizenship upon all persons(see footnote 7) born within the territory of the United States, whether children of citizens or aliens.(see footnote 8) The only common law exceptions to this generally applicable rule of jus soli were of children born under three circumstances-to foreign diplomats, on foreign ships, and to hostile occupying forces-which, under principles of international law, were deemed not to be within the sovereignty of the territory.(see footnote 9)
As the legislative history of the Civil Rights Act of 1866 and the Fourteenth Amendment makes clear, the definitions of citizenship contained in both were intended to codify the common law and overrule Dred Scott's denial of citizenship to persons of African descent. Thus, with the three limited common law exceptions already noted, and the additional exception of tribal Indians, the Fourteenth Amendment guaranteed citizenship to all persons born in the United States, including children born to aliens.
The Civil Rights Act of 1866 provides: ''[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.'' During the debates on the 1866 Act, the Chair of the House Judiciary Committee, Representative Wilson, stated that the provision defining citizenship is ''merely declaratory of what the law now is.'' He cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: ''Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.''(see footnote 10)
The Fourteenth Amendment as initially drafted contained no definition of citizenship. In proposing to insert the definition that became the opening sentence of the Fourteenth Amendment, Senator Howard of Michigan noted:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
He explained that this was not meant to include those discrete classes of persons excluded by the common law, ''but will include every other class of persons.''(see footnote 11)
The framers intended the amendment to resolve not only the status of African Americans and their descendants, but that of members of other alien groups as well. This is reflected in the exchange between Senators Trumbull and Conness, supporters of the Fourteenth Amendment and the Civil Rights Act of 1866, and Senator Cowan, a strong opponent of both. Senator Cowan expressed his reluctance to amend the Constitution in such a way as would ''tie the hands'' of the Pacific states ''so as to prevent them from [later] dealing with [the Chinese] as in their wisdom they see fit.'' The supporters of the citizenship clause responded by confirming their intent to constitutionalize the U.S. citizenship of children born in the United States to alien parents:
Senator Cowan.... I am really desirous to have a legal definition of ''citizenship of the United States.'' What does it mean? ... Is the child of the Chinese immigrant in California a citizen? Is the child of a gypsy born in Pennsylvania a citizen?
Senator Conness.... The proposition before us ... relates ... to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.(see footnote 12)
The constitutional guarantee of citizenship to children born in the United States to alien parents has consistently been recognized by courts, including the Supreme Court, and Attorneys General for over a century. Most notably, in United States v. Wong Kim Ark,(see footnote 13) the Supreme Court held that a child born in San Francisco of Chinese parents (who, under the Chinese Exclusion laws then in effect, could never themselves become U.S. citizens) became at the time of his birth in the United States a citizen of the United States, by virtue of the Fourteenth Amendment.
The Court, in a detailed review of the Anglo-American common law of citizenship and the legislative history of the Fourteenth Amendment, established several propositions. First, the language of the Constitution, as it relates to citizenship, must be interpreted in light of the common law. Under the common law of England, which was adopted by the United States, every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel.
Further, ''[a]s appears upon the face of the [Fourteenth] Amendment, as well as from the history of the times, [the amendment] was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.'' Id. at 676. Specifically, the Court described the purpose for including the qualification ''and subject to the jurisdiction thereof'' as follows:
The real object ... in qualifying the words ''[a]ll persons born in the United States,'' by the addition, ''and subject to the jurisdiction thereof,'' would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases-children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State-both of which ... by the law of England, and by our own law, ... had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
Id. at 682. Upon completing an exhaustive review of the relevant law, the Court concluded that the only exceptions to the Fourteenth Amendment's guarantee of citizenship to all born in the United States were those already recognized under the common law ''with the single additional exception'' of children born to members of American Indian tribes:
The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Id. at 693.
The Court then turned to the status of Chinese persons in the United States under the Constitution and the Chinese Exclusion Acts, which provided for exclusion and expulsion of Chinese persons. After considering the effects of both sources of law, the Court held that Wong Kim Ark had become a citizen at birth by virtue of the Fourteenth Amendment, reaffirming the constitutional principle that ''[t]he Fourteenth Amendment, while it leaves the power, where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.'' Id. at 703.
The principles set forth in Wong Kim Ark cannot be dismissed as having been overtaken by contemporary judicial interpretation or current events. Both the courts and commentators have consistently cited and followed the principles of Wong Kim Ark.(see footnote 14)
Arguing against this great weight of authority, Professors Peter Schuck and Rogers Smith argue for a novel ''reinterpretation'' of the citizenship clause to implement the contrary view that birthright citizenship may be modified by a simple act of legislation.(see footnote 15) Briefly, the authors recommend replacing the ''ascriptive'' approach to citizenship-which determines citizenship by an objective circumstance, such as place of birth or citizenship of parents with a ''consensual'' approach-which makes political membership a product of mutual consent by the polity and the individual. The authors argue that the Fourteenth Amendment may be reinterpreted to allow Congress to deny citizenship to children of illegal aliens by legislation (as opposed to constitutional amendment). As support, the authors attempt to show that the framers of the Fourteenth Amendment intended the reference to ''subject to the jurisdiction'' of the United States to replace the existing ascriptive common law principle with one of express mutual consent.
Schuck and Smith are proposing a change in the law, not a plausible reinterpretation of the Constitution.(see footnote 16) Their theory would require repudiation of the language of the Constitution itself, the clear statements of the framers' intent, and the universal understanding of 19th and 20th century courts. Indeed, the authors themselves concede that there is no judicial precedent in support of their theory.
In short, the text and legislative history of the citizenship clause as well as consistent judicial interpretation make clear that the amendment's purpose was to remove the right of citizenship by birth from transitory political pressures. As the Supreme Court noted in Wong Kim Ark,(see footnote 17) ''[t]he same Congress [that passed the 1866 Act], shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution.'' More recently, the Supreme Court noted in Afroyim v. Rusk(see footnote 18) that the framers of the Fourteenth Amendment ''wanted to put citizenship beyond the power of any governmental unit to destroy.'' See also Rogers v. Bellei, 401 U.S. 815, 835 (1971) (recognizing that ''Congress has no 'power, express or implied, to take away an American citizen's citizenship without his assent,' '' where that citizenship is attained by birth). By excluding certain categories of native-born persons from U.S. citizenship, the proposed legislation impermissible rescinds citizenship rights that are guaranteed to those persons by the citizenship clause of the Fourteenth Amendment. Such a rescission of constitutionally protected rights is beyond Congress's authority.(see footnote 19)
The constitutional principle of birthright citizenship flows from some of the deepest wellsprings of American history. From the earliest days of our nation, with the tragic exception of slaves, all those who were born on its soil and subject to the full power of the United States became its citizens. The simple fact of birth here in America was what mattered.
Then came the Supreme Court's monumentally erroneous decision in Dred Scott that no persons of African descent, including free persons of African descent, could ever be citizens of the United States regardless of their birth in America, and our country subsequently plunged into a savage and brutal civil war. In rebuilding our nation after that war, we pledged that we should never again trust to judges or politicians the power to deprive from a class born on our soil the right of citizenship. We rejected the possibility of a permanent caste of aliens, generation after generation born in America but never to be among its citizens. To have citizenship in one's own right, by birth upon this soil, save by one's own renunciation of it, is a foundational principle enshrined in our Constitution.
Today, in 1997, we cannot and should not try to solve the difficult problems illegal immigration poses by denying citizenship to persons whose claim to be recognized as Americans rests on the Constitution and over two hundred years of history. H.R. 7 is unquestionably unconstitutional, and we cannot support it. The Department of Justice stands ready to continue to work with the members of this Committee and others on legislation and oversight to address the problems of illegal immigration in ways that are consistent with the Constitution.
Mr. SMITH. Thank you, Ms. Johnsen. I just have a couple of questions. The first is, wouldn't you agree that in the Ark case, though, the court, when it referred to aliens, was in this case referring to individuals who were in the country legally, not illegally?
Ms. JOHNSEN. It's certainly true that the facts of that case involved a particular individual whose parents were residing here not illegally. They were not legally eligible to become citizens themselves, but the Court's reasoning-the important thing is the Court's reasoning in that very lengthy, comprehensive opinion-applies equally to illegal aliens--
Mr. SMITH. I think you answered my question. You said they were not in the country illegally, and I just wanted to make that distinction.
Tell me what you think of this Senator Jacob Howard, who was the author of the citizenship clause of the 14th amendment, made this statement-I think on the floor of the Senate-in regard to the 14th amendment language that he had written, ''This will not, of course, include persons born in the United States who are foreigners, aliens.'' Don't you think the clear implication of what he was saying-and this is the person who wrote the language-was not to include a category of individuals who, say, would be illegal aliens today?
Ms. JOHNSEN. Well, that full quote is ''foreigners, aliens, who belong to the families of embassadors or foreign ministers.'' And the transcription of that oral statement must be read to mean persons who both are foreigners or aliens and belong to the families of ambassadors--
Mr. SMITH. I have to tell you, I read it to mean the plain meaning of the language or the definition of the words ''foreigners'' and ''aliens.'' To me, it's pretty clear that he did not mean to include, as he, himself, said, the children of illegal aliens, but maybe we simply just disagree on that.
Ms. JOHNSEN. If I could just say--
Mr. SMITH. One quick other question, and I'm asking this question at the request of Mr. Bilbray. Has any illegal alien ever been tried for treason that you're aware of?
Ms. JOHNSEN. I am not-I do not know the answer to that question and can get back to you, but I do know that the Supreme Court decided the Carlisle case in 1872 in which it discusses that aliens can be, and it didn't distinguish between--
Mr. SMITH. I'm told that that case involved a legal.
Ms. JOHNSEN. It didn't make a distinction between legal and illegal. What it did say is that it clearly applies to those whose residence is transitory. So it clearly would apply to those who are not permanent resident aliens if they're here even temporarily. Any alien who is in this country is subject to our laws.
Mr. SMITH. If you can find any case where specifically an illegal alien has been tried for treason, if you'll let the subcommittee know--
Ms. JOHNSEN. We will let you know, but I think it's important to look at the reasoning in the cases, not just the specific facts. If the reasoning applies equally to illegal aliens, then it's important to follow that.
[The information follows:]
After conducting further research in response to your question on behalf of Mr. Bilbray, the Office of Legal Counsel has found no cases in which an illegal alien was prosecuted for treason. Carlisle v. United States, 83 U.S. 147 (1872), which I discussed at the hearing, addressed whether a presidential proclamation granting ''pardon and amnesty for the offence of treason against the United States ... during the ... civil war'' applied to aliens who had assisted the Confederacy and were living in the United States at the outbreak of the war. Id. at 156 (internal quotation marks omitted). Carlisle held that the aliens were within the scope of the pardon because ''all persons ... that are within the territory'' of the United States, even ''strangers ... whose residence is transitory,'' owe the country a duty of temporary allegiance and thus can commit treason. Id. at 154 (internal quotation marks and citation omitted). As I explained at the hearing, Carlisle's reasoning does not distinguish among different groups of aliens. All aliens, even those whose residence is transitory, owe allegiance to the country in which they reside simply by virtue of their presence therein.
The State Department expressly embraced a similarly broad view of allegiance with respect to the question of citizenship when, in 1930, it found that a child born on Ellis Island to a woman who had not yet been admitted to the United States under the immigration laws was nonetheless a citizen of the United States. See Memorandum of the Office of the Solicitor for the Department of State on Ona Laszas (Feb. 6, 1930), in Nationality, 3 Hackworth Digest at 10. The Department reasoned that at the time of the child's birth, the mother was on United States territory and subject to United States laws, and that she therefore owed the ''the same 'temporary allegiance' which is required of aliens generally while they are in this country.'' Id. Her child was therefore a citizen of the United States by birth.
Mr. SMITH. Thank you, Ms. Johnson.
The gentleman from North Carolina is recognized.
Mr. WATT. Ms. Johnsen, how would you go about getting a case before the United States Supreme Court to address directly the issue that Mr. Bilbray says the Court doesn't need to address, I guess? It seems to me that that would be a much clearer and more definitive way to have this issue addressed. Have there been any cases on which cert. has been denied or in which, for whatever reason, they haven't been able to get there? Is it a standing problem? What, what-can you enlighten us?
Ms. JOHNSEN. Well, I have to say, respectfully, that I think the Supreme Court has, on at least several occasions, squarely addressed the issue here. Although the facts did not involve an illegal alien--
Mr. WATT. OK, I agree with you that the Supreme Court has virtually gone where you say, but I'm trying to put this to rest once and for all. I guess it really wouldn't put it to rest because then the next question would be whether you wanted to amend the Constitution, but at least to put the constitutional issue to rest-whether the current language in the Constitution addresses the issue. Has there been a case where the facts are such that it would fit all the fact patterns and why has it not been decided?
Ms. JOHNSEN. Two things: The closest case the Court has decided is-I think you mentioned-Plyler v. Doe, where the Court did say clearly that you cannot draw any plausible distinction between illegal and legal aliens for purposes of interpreting the meaning of ''jurisdiction'' under the 14th amendment.
Second, if Congress were to pass H.R. 7--
Mr. WATT. You're avoiding my question.
Ms. JOHNSEN. No, no. I think that--
Mr. WATT. Don't avoid my question. I'm just trying to--
Ms. JOHNSEN. No, I do not know of any previous attempt on the part of Congress-you know, there has never been an attempt. The problem is--
Mr. WATT. No, I'm talking about in litigation. I'm not talking about in Congress. I don't think this issue can be addressed by Congress. I mean, that's where I've started; I think that's probably where I'll end, unless somebody gives me something persuasive. I'm trying to figure out whether there's a way to get a specific case with the exact right facts before the Supreme Court to put at least that issue to rest.
Ms. JOHNSEN. I think the only way to do that, to get a ruling that all would agree applies directly to H.R. 7, would be to enact H.R. 7. I think that would be the wrong thing for Congress to do because I think we already have clear guidance about what the 14th amendment means. But I don't think there is--
Mr. WATT. You're saying, in the absence of a statute like H.R. 7, there's no way to get a case--
Ms. JOHNSEN. I don't-I don't think there's a way to get a case that would satisfy supporters of H.R. 7.
Mr. WATT. Why?
Ms. JOHNSEN. Because we have quoted extensively from existing case law that was very, very close and it hasn't been satisfactory to supporters of H.R. 7. If what they want is a case directly on point, it would require actually enacting the statute and having it work its way through the courts. During that period, there would be tremendous uncertainty and harm caused.
Mr. WATT. Do you think a person who is not directly impacted, who obviously would have no vested impact in bringing a case, because they-I mean, anybody else would not have standing to get it--
Ms. JOHNSEN. I think there would not be standing to raise this issue, in the absence of someone who has been denied or threatened with a denial of citizenship to which they're constitutionally entitled.
Mr. SMITH. I have one other quick question, if the gentleman will yield to me.
Mr. WATT. I'd be happy to yield.
Mr. SMITH. And then we've got to hurry along to get to this vote. We will recess after my question for another 15 minutes, come back, and take up the third panel.
I liked your answer that the only way to determine it is to pass the bill and then we'll find out. I really think you're misstating, and I hope not intentionally, the Plyler case. You should know, and I know, that the reference to which you've made was dicta; it wasn't in the opinion. Second of all, the Plyler case dealt with education, not citizenship, and-wait a minute-and the third thing about that particular case is it specifically said it was up to Congress to make that determination as far as our immigration laws go. Would you disagree with any of those three?
Ms. JOHNSEN. It certainly is dicta, but it is part of the opinion and the Court's reasoning. In fact, that's something--
Mr. SMITH. But dicta doesn't have the--
Ms. JOHNSEN. I mean, this doesn't have the weight of a holding. That's certainly true.
Mr. SMITH. Thank you, Ms. Johnsen. We will resume with the third panel when we return.
Mr. SMITH. The subcommittee will reconvene and we welcome our third panel. And let me introduce them now. Dr. Edward Erler, California State University at San Bernardino; Pam Slater, chairwoman, San Diego County Board of Supervisors, San Diego, CA; Phil Peters, Alexis de Tocqueville Institute, and Ms. Gwat Bhattacharjie. Is that close enough? Or, if not-correct? OK.
We welcome you all and look forward to your testimony. And we will begin with Dr. Erler.
STATEMENT OF EDWARD J. ERLER, PROFESSOR OF POLITICAL SCIENCE, CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO
Mr. ERLER. Thank you, Mr. Chairman.
It's my considered opinion that H.R. 7 is fully within the powers of Congress to enact. It think it falls within Congress' power under section 5 of the 14th amendment to define who is within the jurisdiction of the United States. And I believe Congress has exercised its section 5 powers on many occasions, and most recently in the Immigration and Control Act of 1986, where Congress defined some persons who were previously illegal aliens and made them into legal aliens. So I think that this is not something new to Congress. It's been exercised on many previous occasions and should be exercised again.
As it has been mentioned by previous witnesses, there are two requirements of citizenship contained in the 14th amendment: birth or naturalization, and jurisdiction-be within the jurisdiction of the United States. It has also been mentioned that these two different clauses, two separate clauses, have independent weight and they must both be satisfied to satisfy the conditions of citizenship. If it were true that all persons born within the geographical limits of the United States were automatically within the jurisdiction, we would simply render the jurisdiction clause superfluous.
Also, I believe that if the framers of the 14th amendment intended merely to adopt birthright citizenship, as it was known to English common law, they would not have included the jurisdiction clause, because a mere statement that all persons born in the United States are citizens would have implied the common law exceptions for ambassadors and other foreign officers. So I think that the jurisdiction clause means something and I think we can actually determine with some degree of specificity what it means.
[Ed: Huh? How would a statement that "all persons born in the United States" IMPLIED that "persons born in the United States to ambassadors" didn't count?!!]
Mr. Chairman, you referred earlier to Senator Howard's statement. Senator Howard made this statement on the floor of the Senate in the debate over the 14th amendment. He was the author of the citizenship clause in the 14th amendment. He said this about the jurisdiction clause: ''The word 'jurisdiction,' as here employed, ought to be construed so as to imply full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States.''
He also said: ''Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.''
Clearly, the author of the citizenship clause did not intend to count foreigners or aliens and those born to ambassadors or foreign ministers as included within the jurisdiction of the United States. That statement by the author of the citizenship clause, I think, is indisputable and I think that it is clear.
[Ed: The grammar is a little choppy, which is always a playground for reinterpreters. Here is the statement edited for cleaner grammar: "This will not, of course, include persons born in the United States TO families of ambassadors..." We should always allow for a little choppy grammar from the best authors, when their spoken words are transcribed. I have transcribed speeches from lawyers to talk show hosts to the head of the Iowa Department of Education, to myself, and I can assure you there are no exceptions among those I have transcribed. We are all about the same. Well, the head of the Department of Education was the worst! (Dr. William Lepley.) Plenty more examples are available from the transcript of this proceeding.
[In this case, the historical statement begins with a head-shaker: "this will not include persons born in the United States who are foreigners." Well, what does THAT mean? Isn't the issue before us, whether someone born in the United States is a foreigner?! What does it explain, to say the way to tell whom, of those born in the U.S., are citizens and whom are foreigners, is that everyone born in the U.S. is a citizen, except those who are foreigners?! What Howard must have meant to say was "This will not...include persons born in the United States TO foreigners; (or, in other words,) TO aliens who belong to the families of ambassadors....." "Aliens" and "foreigners" are not two separate categories. They mean the same thing. Howard is just using the redundancy to underline his meaning, not to imply a second category whose identity we are invited to guess. When the grammar of someone's oral defense of his written statement invites any speculation at all, but the grammar of the written statement does not, we should be content with the plain meaning of the written statement: in case, the 14th Amendment, without looking in Mr. Howard's debate notes for excuses to change the plain grammar of the Constitution.]
A point that Congressman Bilbray made in his opening remarks was that it is universally agreed that Indians were not included in the 14th amendment, nor were they made citizens of the United States by virtue of the enactment of the 14th amendment. This was made clear not only in debate in Congress, but in 1870 the Senate Judiciary Committee commissioned a study to be made about the extent of the jurisdiction clause and that committee concluded that Indians were not, in fact, included within the jurisdiction of the United States. Congress has, over the years, passed various pieces of legislation to bring Indians within the jurisdiction of the United States, exercising its section 5 powers under the 14th amendment.
In 1873, the Supreme Court, in the case of Elk v. Wilkins, considered the issue of whether or not an Indian who resided apart from his tribe and had renounced allegiance to his tribe could be considered a citizen of the United States. Basically, the Supreme Court in that case decided that no one can become a citizen of the United States without the consent of the United States. So that self-selected citizenship was not comprehended within the jurisdiction clause of the 14th amendment.
Let me just add one thing and I think it's very important. In 1868, Congress passed what is known as the Expatriation Act. This was a companion piece to the 14th amendment. It was debated by virtually the same Congress that passed the 14th amendment. This bill, the Expatriation Act of 1868, rejected the notion of birthright citizenship. There, Members of Congress said birthright citizenship means fealty to the sovereign forever, indefeasible [cannot be undone] fealty [the duty of a vassal to his feudal lord] to the sovereign forever.
[Ed: Wow! If "birthright citizenship" meant no citizen may renounce his citizenship and move to another country, no wonder Congress rejected it! I would too!]
I have some interesting quotes here by the Members of that Congress who debated the bill. Senator Howard, again, the author of the citizenship clause in the 14th amendment, supported the expatriation bill and he said that, ''the right of expatriation is inherent and natural in man as man.'' He said that the notion of birthright citizenship was an indefeasible, feudal doctrine of indefeasible allegiance.
Blackstone, of course, had given us a description-the famous British jurist-had given us a description of what it means to be subject to birthright citizenship. And he said: ''Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection.... Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled or altered by any change of time, place, or circumstance.'' And that this allegiance to the king was indefeasible. It could never be thrown off. And I submit to you--
Mr. SMITH. Dr. Erler, we'll need to move on.
Mr. ERLER. Just one point, and then I'm finished. I submit to you this: that the Framers of this Nation, in the American Revolution, threw off British citizenship. It seems to me to be utterly bizarre to think that in throwing off British citizenship, that indefeasible birthright citizenship, they were adopting or accepting for themselves birthright citizenship. They believed that citizenship was based upon consent. No person could become a citizen without his consent, and by reciprocal force, no person could become a citizen without the consent of the nation. Thank you.
[Ed: This is just too weird. What is his point, that babies should not be allowed the status of citizens of ANY nation until the reach the age of consent? These characterizations without sources or quotes are so irrational on their face that their faithfulness to whatever sources they allegedly reflect cannot be trusted. A baby has no choice in his parents, until he reaches the age of consent. Then he may leave them, if he chooses. So with citizenship. Duh.]
[The prepared statement of Mr. Erler follows:]
PREPARED STATEMENT OF EDWARD J. ERLER, PROFESSOR OF POLITICAL SCIENCE, CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO
It is my considered opinion that Congress has authority under Section 5 of the Fourteenth Amendment to define the jurisdiction of the United States. Indeed, it is my contention that Congress has exercised that power on many occasions, most recently in the Immigration Reform and Control Act of 1986.
Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the ''jurisdiction of the United States'':
[E]very person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.(see footnote 20)
Clearly, the author of the citizenship clause intended to count ''foreigners,'' ''aliens,'' and those born to ''ambassadors or foreign ministers'' as outside the ''jurisdiction of the United States.'' Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent. This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive ''their just powers from the consent of the governed.''
[Ed: I think I am about to figure out how he imagines, in this imperfect grammar, a theory that "foreigners" and "aliens" are two separate categories after all, and that we are not on the subject of whether birth in the U.S. confers citizenship after all, but on the subject of who is under U.S. jurisdiction. See separate article, Should babies of "illegal aliens" born here be counted as citizens?]
Senator Lyman Trumbull, Chairman of the Judiciary Committee and a powerful supporter of die Fourteenth Amendment, remarked on May 30th, 1866, that the jurisdiction clause includes those ''Not owing allegiance to anybody else.... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.''(see footnote 21) This was familiar language. The Civil Rights Act of 1866 had defined citizens of the United States as ''all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.'' It is universally agreed that the immediate impulse for the passage of the fourteenth amendment was to constitutionalize the Civil Rights Act of 1866. This was an attempt to put the question of citizenship and matters of Federal civil rights beyond the reach of simple congressional majorities. Thus it is clear that the idea of allegiance (''not subject to any foreign power'') was somehow central to understanding the jurisdiction clause of the fourteenth amendment.
Much of the debate about the jurisdiction clause in the Congress centered on the status of Indians. The immediate question was whether the fourteenth amendment would confer citizenship upon the Indians as well as upon the newly freed slaves. The former slaves, of course, had been born in the United States and had always been subject to its jurisdiction. Was the same true of Indians? Indians were surely born in the United States, but were they subject to its jurisdiction in the sense of ''[n]ot owing allegiance to anybody else?'' Senator Trumbull noted that ''[tlhe provision ... that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens' ... means subject to the complete jurisdiction thereof.'' Trumbull proceeded to deny that Indians were ''in any sense subject to the complete jurisdiction of the United States.... We make treaties with them, and therefore they are not subject to our jurisdiction.... 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'.''(see footnote 22)
[Ed: this is certainly true, but I am frustrated because all these mentions of Indians understate the distinction. The 14th Amendment is more clear about these differences than are the explanations of the difference. The Amendment denies automatic citizenship by birth to all Indians "not taxed". This reminds us that in 1868, a great indicator of the difference between Indians and all citizens, is that Indians were not taxed, like everyone else. Why? because they lived on their own land, which indeed they ruled by their own laws as independent nations. To this day, Indians living on reservations are independent of not only our tax laws, but most of our other laws. The most visible manifestation of this is that Indians may operate gambling casinos on their reservations without any permission from the legislatures of the state they are in. "Illegal aliens" certainly do not fall into this category! They do not have any land upon which they are immune from our laws! They are no safer, when they do not pay taxes, than citizens.]
The author of the citizenship Senator Howard, emphatically agreed with Trumbull's assessment that Indians would not become citizens of the United States as a result of the passage of the fourteenth amendment:
The word ''jurisdiction,'' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department, that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certain, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits [borders] of a State, is subject to this full and complete jurisdictions.(see footnote 23)
Clearly, insofar as Indians owed tribal allegiance they were not within the jurisdiction of the United States, even though there were born within its territorial limits and in many instances subject to its laws. It is important to note here that jurisdiction does not mean simply subject to the laws of the United States. Rather, it refers specifically to political jurisdiction in the sense of allegiance. Aliens in the United States are properly subject to the laws of the United States and the jurisdiction of its courts; but this is not the same as owing allegiance to the United States. Aliens subject to the laws of the United States still owe allegiance to another country and are thus not within the political jurisdiction of the United States-the only jurisdiction contemplated by the fourteenth amendment
In 1870, the Senate directed the Judiciary Committee to ''report to the Senate the effect of the fourteenth amendment to the Constitution upon the Indian Tribes of the country, and whether by the provisions thereof the Indians are not citizens of the United States.'' The Committee report noted that ''[t]he inference is irresistible that the amendment was intended to recognize the change in the status of the former slave which had been effected during the war, while it recognizes no change in the status of the Indians. The report's conclusion was unequivocal:
Those who framed the fourteenth amendment, and the Congress which proposed it, as well as the legislatures which adopted it, understood that the Indian tribes were not made citizens, but were excluded by the restricting phrase, ''and subject to the jurisdiction,'' and that such has been the universal understanding of all our public men since the amendment became a part of the Constitution.(see footnote 24)
Thus it seems to be beyond cavil that the jurisdiction clause of the fourteenth amendment was intended by its framers to have independent force; not all persons born in the geographical limits of the United States are within the jurisdiction of the United States. To be within the jurisdiction of the United States means to be within its political jurisdiction Those who today advocate birth-right citizenship for children of illegal aliens born within the geographical boundaries of the United States believe that the fourteenth amendment extends to these children what the framers of the fourteenth amendment said did not extend to Native Americans.
[Ed: How can these intelligent men not see the difference between "illegal aliens" and Indians a century ago? And yet, even those differences remain, now all Indians, even those born on reservations, are U.S. Citizens. So if this "jurisdiction of our laws" is what decides who gets citizenship, and "illegal aliens" are more subject to the jurisdiction of our laws, than Indians, how is it that "illegals" should have less right to citizenship than Indians?]
As the Supreme Court said in Elk v.Wilkins (1884), ''[t]he evident meaning of [the jurisdiction clause] is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.... Indians, born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian Tribes, an alien though dependent power, although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' ... than the children of subjects of any foreign government born within the domain of that government; or the children born within the United States, of ambassadors or other public ministers of foreign Nations.''(see footnote 25) In this case, Elk had renounced his tribal allegiance and had lived for some years apart from the tribe. But the Court was adamant that the ascription of citizenship could not be a unilateral or self-selected act ''The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States'' signified either by treaty or legislation.(see footnote 26)
[Ed: Aarghh! Of course Indians were not "completely subject" in the sense that they could be prosecuted for violating only some of our laws. However, "illegals" can be prosecuted for violating any of our laws. The Court here is obviously not talking about whatever allegience may reside in an individual's heart. What a circus that would be if THAT determined citizenship! That would mean that no Democrat could run for President, because they are so anti-America they would all lose their citizenship as soon as they opened their mouths! Wouldn't that be a circus, for our USCIS to start deporting people for not being patriotic enough! No, our history is not littered with rulings this foolish. The Court, and our founders, measured "jurisdiction" by how many laws people can be prosecuted for violating, not by whatever they might feel in their hearts, which only God can accurately measure!]
Neither ''the Indian Tribes'' nor ''individual members of those Tribes,'' no more than ''other foreigners'' can ''become citizens of their own will.'' (see footnote 27) It must be emphasized that no individual can be made a citizen against his will or consent.Yet, self-selected citizenship is not enough; it must be ratified by those are already members of the political community. As the Court concluded, the jurisdiction requirement of the fourteenth amendment embodied ''the principle that no one can become a citizen of a nation without its consent.''(see footnote 28)
[Aarghh! No, no, no, it cannot be the whim of any majority that determines whether a particular minority may have rights. Not legitimately or lawfully. Any majority which refuses to support a law which fairly distributes equal rights to all human beings similarly situated, is acting unlawfully, and undermines the Rule of Law upon which its own security is founded.]
The Supreme Court in Elk noted that several congressional acts had been passed subsequent to the fourteenth amendment to bring, various Indian tribes within the jurisdiction of the United States, acts ''which would have been superfluous if they were or might become, without an action of the government, citizens of the United States.''(see footnote 29) In this regard, the Court mentions the ''Act of July 15, 1870,'' extending the jurisdiction of the United States to any member of the Winnebago tribe who desired to become a citizen. A similar act was passed on March 3, 1873, extending jurisdiction to members of the Miami tribe of Kansas. Indeed, this was the method used by congress-exercising its section 5 powers to enforce the provisions of the fourteenth amendment-to bring various members of Indian tribes within the jurisdiction of the United States. General legislation was passed in the Indian Citizenship Act of 1924 which provided that ''all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.''(see footnote 30) Most recently, the amnesty provision of the Immigration Reform and Control Act of 1986 extended the jurisdiction of the United States to include illegal aliens residing in the United States for a specified period. Thus, Congress has a long history of exercising its section 5 powers to define who falls within the jurisdiction of the United States.
In the case of the children born to aliens illegally in the United States, their citizenship would follow the citizenship of their parents or be determined by the laws of the country in which the parents hold citizenship. The fact that illegal aliens have violated laws of the United States precludes any possibility that they can be properly said to be within the jurisdiction of the United States as the aliens surely have demonstrated that they to not believe themselves to be subject to the laws of the United States, or are only partially subject.
[Ed: Who is this guy? Oh, EDWARD J. ERLER, PROFESSOR OF POLITICAL SCIENCE, CALIFORNIA STATE UNIVERSITY AT SAN BERNARDINO. Had me worried for a minute. I was afraid he had been elected. This is so nuts! If mere belief that one is above the law made one in fact above the law, no Self Esteem Honors Graduate could be arrested for any crime! Hmmm. Maybe that explains Bill Clinton. Anyway, I don't think there is any "illegal" who thinks he cannot be arrested! This guy, being a college professor, is probably just "projecting". He figures that since no one can stop him for his Crimes of Logic, therefore this is a universal principle, that if you believe you are God, you really are.]
Contrary to a currently fashionable argument, the denial of birth-right citizenship to children of illegal aliens does not punish the children for the sins of the parents because the children don't have a right to citizenship in the first place they are being denied nothing that is rightfully theirs. It would, of course, be a different matter for the children born of legal aliens who have been admitted by the laws of the United States. Whether their children would be citizens at birth or upon the attainment of citizenship by the parents would be a matter for Congress to determine.
Congress, of course, has plenary power, under terms of Article L Section 8 of the Constitution, ''to establish an uniform Rule of Naturalization.'' By necessary inference, Congress has the power to regulate immigration and set the terms by which those who are legally admitted can remain in the country. It certainly can establish the standards for which the contract of citizenship can be offered and the qualifications of those to whom it will be proffered. I believe that Congress is fully competent, under the fourteenth amendment, to pass legislation defining those who are ''subject to the jurisdiction'' of the United States. It does not require a constitutional amendment to withhold citizenship from children born in the United States of illegal alien parents. Their parents are not ''subject to the jurisdiction'' of the United States and they seek citizenship for their children without the consent of the nation. It defies logic to insist that an illegal act on the part of parents can confer the boon of citizenship upon their children. The nation has specified the terms of its consent in the uniform rules for naturalization and laws governing immigration.
The argument for birth-right citizenship is, of course, more suitable to feudalism than it is to republicanism. Under the feudal concept of citizenship, anyone born under the protection of the sovereign owed perpetual allegiance or fealty to the sovereign. It is hardly credible that the framers of the American Constitution would have contemplated a basis for citizenship that had its origins in the feudal regime. Indeed, in basing citizenship on the consent of the governed, the obligations of citizenship were placed on an entirely new-and republican-basis. The Reconstruction Congress recognized this point when it passed the Expatriation Act of 1868. This act-a companion piece to the fourteenth amendment-was an explicit rejection of birth-right citizenship as the ground for American citizenship. It simply declared that ''the right of expatriation [the right to renounce one's citizenship] is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.'' Thus the English common law doctrine of birth-right citizenship was decisively rejected as incompatible with the principles of consent embodied in the Declaration of Independence. After all, the Declaration of Independence announced to the world that Americans no longer considered themselves to be British citizens. If Americans held lo the notion of birth-right citizenship, they would have been incapable of declaring their independence from Britain!
Senator Howard, the author of the fourteens amendments citizenship clause, stated in his support of the Expatriation Act that the principles of the Declaration of Independence necessarily mean that ''the right of expatriation ... is inherent and natural in man as man...''(see footnote 31) The notion of birth-right citizenship was frequently described as an ''indefensible feudal doctrine of indefeasible allegiance.'' One member of the House of Representative gave expression to the general sense of the Congress when he concluded that ''[i]t is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.''(see footnote 32)
Blackstone had described the allegiance required by the English doctrine of birth-right citizenship in these terms:
Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection.... Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance.... For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrence act of that prince to whom it was first due.(see footnote 33)
The English common law became a part of the American system only insofar as it was consistent with the principles of republican government James Madison wrote that one ''fundamental principle of the revolution'' was the assertion of the competence of American legislatures to pass legislation independently of the common law. In some cases, aspects of the common law were accepted as a matter of convenience, in others it was rejected outright as incompatible with the principles of a free and self-governing nation. Surely the nation of birth-right citizenship, with its requirement of indefeasible allegiance to a king, was one of those aspects of the common that was rejected by the principles of the Declaration of Independence.(see footnote 34)
[Uh, reality check: what does this have to do with the subject? What does the medieval English law about the slave of a king having no right to go be the slave of another king, have to do with whether we ought to continue according citizenship to babies of "illegals" born here? Oh, I remember. We are forcing, against their will, these poor little babies to be citizens! That isn't "democratic"! Well, it is for babies of citizens, but not for babies of non-citizens! C'mon, guys, no baby is being forced against his will to be anything. When they grow up old enough to have a will, they will be free to go anywhere else they choose. Meanwhile, for as long as they are here, and because they have been born here just as surely as we have, we who want to "do unto others as we would have them do unto us" want to share with them the same rights, as citizens, that we have.]
Among a host of other considerations, birth-right citizenship denies that the people always retain the natural right to revolution, a right that is the fundamental right of rights described in the Declaration of Independence. As Representative Norman B. Judd remarked on the floor of the House in the debate over the Expatriation Act, ''the English common law was not adopted ... except so far as applicable to our situation and our form of government.... The very origin and nature of our institutions utterly forbid the idea that the doctrine of 'perpetual allegiance' is consistent with our institutions.''(see footnote 35) Representative Judd further specified the precise sense in which the common law doctrine of birth-right citizenship was inconsistent with the principles of ''our institutions:'' ''The right of expatriation is clearly implied as inalienable in the enumeration of rights in the Declaration of Independence, and its obstruction was one of the wrongs charged by the colonies against the English crown.''(see footnote 36) There can be no doubt whatsoever that the fortieth Congress that passed the Expatriation Act believed that it contained a thoroughgoing repudiation of the English common law notion of birth-right citizenship and its attendant requirement of perpetual allegiance. Since this Act was contemporaneous with the adoption of the fourteenth amendment, there can be little doubt that it also embraced the principle of citizenship that was embodied in the amendment. Reciprocal consent is the principle of citizenship embraced in the fourteenth amendment and the Expatriation Act is a confirmation of that principle.
Chief Justice Fuller remained in his dissenting opinion in United States v. Wong Kim Ark (1898), that in the American Revolution ''when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the colonies, in derogation of the principles on which the new government was founded, was abrogated.''(see footnote 37) It was emphatically the case, Fuller rightly argued, ''that the rule making locality of birth the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.''(see footnote 38) Indeed, the consensual basis of citizenship, so far from creating a permanent and indissoluble allegiance to the sovereign maintains ''the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation.''(see footnote 39)
The majority decision in Wong Kim Ark failed to make an adequate case for American adoption of the English common law basis of citizenship. Wong Kim Ark's parents were legal residents of the United States but were rendered ineligible for citizenship by both states and treaty; and they still maintained their allegiance to China.
The Court nevertheless held-wrongly in my view-that Wong Kim Ark, having been born within the territorial limits of the United States, had birth-right citizenship. The majority opinion failed to see that the English common law of birth-right citizenship was not only contrary to the principles of the founding, but had been explicitly rejected by the fourteenth amendment and the Expatriation Act. In any case, there has never been a Supreme Court opinion holding that the children of illegal aliens are entitled to American citizenship by virtue of their birth within the geographical limits of the United States. Jurisdiction is not a geographical concept; it is a matter of political allegiance. Birth-right citizenship has no place in republican government; it is the relic of monarchy and should be recognized as such once again by Congress.
Mr. SMITH. Thank you, Dr. Erler. Ms. Slater.
STATEMENT OF PAM SLATER, SUPERVISOR, SAN DIEGO COUNTY BOARD OF SUPERVISORS
Ms. SLATER. Thank you, Mr. Chairman. I am Pam Slater and I'm the third district supervisor for the San Diego County Board of Supervisors. On April 15, I brought a proposal to our board of supervisors asking for support for H.R. 7, sponsored by Congressman Bilbray. I'm pleased to report that our board unanimously supported H.R. 7 and authorized a communication with all county supervisors throughout California. We received quite a significant number of replies and quite a number in affirmative support. Due to the significant number of births by illegal alien mothers in California, and particularly in our county, my colleagues urge you to support H.R. 7.
We're very concerned about the taxpayers who must pick up the tab of the increasing costs for services rendered to illegal alien parents. San Diego County's taxpayers incur a tremendous financial burden by providing birth assistance to illegal parents. However, medical care is only the beginning. As a U.S. citizen, the child is now eligible to receive Federal and State benefits, collected on his or her behalf by the parents who are here illegally.
Therefore, we've created a catch-22 situation. Adults who are in this country illegally and are not permitted to work, not recognized as legal by our law enforcement agencies or by any branch of government, are appearing at county welfare offices to collect checks on behalf of their children. The parents are using the children to collect benefits and remain in the country. This is a travesty for our country. We have encouraged generations of people to come to the United States not out of loyalty or a sense of belonging, but, instead, for money and benefits.
The San Diego County Board of Supervisors believes that granting automatic citizenship to persons born in the United States to parents who have entered the country illegally encourages illegal immigration. An offer of financial support to children born in the United States is far too great a lure. We believe the loophole must be closed. We believe that H.R. 7 is the way to do it.
A poll conducted by the University of California at Berkeley between 1982 and 1987, concluded that 95 percent of women from Tijuana, Mexico, who gave birth in the United States admitted that they did so to gain U.S. citizenship for their child. In most cases, the bill is left to the taxpayers. One-third of MediCal or Medicaid births in San Diego County and two-thirds of MediCal or Medicaid in Los Angeles County are to those illegal parents.
To reward people who enter our country in defiance of our laws is unjust. And we believe it is a slap in the face to legal immigrants who often wait years to become American citizens and who honor their commitment. In my view, encouraging illegal entry into our country dishonors our long and rich heritage of legal immigration.
For those who doubt the impact, I invite you to come down for a border tour. I'm certain that Supervisor Bilbray would be-rather, pardon me, he was my former colleague-Congressman Bilbray would be happy to lead a tour. It's very enlightening to see it in person, to see firsthand. And I encourage you to view television transcripts of hospitals in the Chula Vista area to see the number of expectant mothers, who are here, across the border, without sanction, and touring the parking lot so they can go in and deliver their children. I invite you to speak to the hospitals who are suffering under an unmitigatable burden in this regard.
In addition to the birth benefits, here are some more benefits accorded illegal aliens on behalf of their child. They may receive a welfare check on behalf of their child under the AFDC, now called TANAS, welfare benefits for 18 years. They may receive food stamps. They may receive childcare payments and free milk, cheese, and other subsidies. They may receive free education until the child turns 18 years old. Educating 355,000 citizen children of illegal aliens in California cost taxpayers $1.7 billion in fiscal year 199596.
[Ed: The supervisor incorrectly implies that these citizens are any more eligible for free K-12 education than any child of "illegals" not born here. The Supreme Court gave all children the right to education, based on its unanimous finding that all "illegals" have 14th Amendment rights to "equal protection of the laws".]
Illegal aliens are eligible to receive housing assistance from the county of San Diego if their child is born in the United States. Assistance is based on one child. If they have more than one child, the assistance increases. Conceivably, recipients can receive assistance for the majority of their lives.
The effect of illegal immigration on San Diego County is devastating. Southern California is a magnet to illegal aliens from Mexico and South America. The State spends more than $230 million in medical bills annually to support approximately 100,000 births by illegal aliens. The strain on our schools, our housing, our social services, and our criminal justice system is enormous.
[Ed: Interesting. Other sources say Congress gave $250 million to all the states for the estimated use, by "illegals", of hospital emergency rooms. What is the true figure?]
In 1995, when our last statistics were available, as I mentioned, one out of every three births in San Diego County was paid for by MediCal. This represented $11.5 million to the county of San Diego.
I'll conclude very quickly. Children born to illegal alien mothers constitute the largest caseload increase among welfare applicants in counties across the State. In fact, while our welfare rolls are declining due to welfare reform, benefits for citizen children of illegal alien mothers are on the increase.
I'd like to conclude by saying that I agree wholeheartedly with Mr. Watt. I believe that what we need to do is have a Supreme Court review of this issue. And I believe that the best way, the most efficacious way, to achieve this is to have this panel pass this bill and send it on to Congress, urge Congress to pass it, and seek a sponsor in the Senate; get it passed in the Senate, and then start the process of review. Because I believe that Mr. Watt is right: Only in that way will we get the answer that will answer the question of; do we or do we not need a constitutional amendment?
[Theprepared statement of Ms. Slater follows:]
PREPARED STATEMENT OF PAM SLATER, SUPERVISOR, SAN DIEGO COUNTY BOARD OF SUPERVISORS
Mr. Chairman and honorable members, I am Pam Slater, Third District Supervisor for the County of San Diego, and I am here in support of Congressman Bilbray's H.R. 7.
On April 15 I brought a proposal to the San Diego County Board of Supervisors to ask my colleagues to support House Resolution 7 (H.R. 7) by Congressman Brian Bilbray. H.R. 7 would deny citizenship at birth to children born in the United States of parents who are in this country illegally.
Due to the significant number of births by illegal alien mothers in California and in our county, my colleagues on the Board unanimously supported H.R. 7, good news for taxpayers who must pick up the tab for services received by illegal alien parents. The Board's action also authorized letters to be sent by our Chairman to all California County Boards of Supervisors.
San Diego County taxpayers incur a tremendous financial burden by providing birth assistance to illegal alien mothers.
However, medical care is only the begging. As a United States citizen the child is now eligible to receive federal and state benefits, collected on his or her behalf by the parents.
Therefore, we have created a catch-22. Adults who are in this country illegally and are not permitted to work, not recognized as legal by our law enforcement agencies or by any branch of government, are appearing at county welfare offices to collect checks on behalf of their children.
The parents are using those children to collect benefits and remain in this country.
This is a travesty for the United States. We have encouraged generations of people to come to America not out of loyalty or in search of freedom, but instead, for money and benefits.
The San Diego County Board of Supervisors believes that granting automatic citizenship to persons born in the United States to parents who have entered the country illegally, encourages illegal immigration.
An offer of financial support to children born in the United States is far too great a lure. This loophole must be closed.
In a poll conducted by the University of California at Berkeley between 1982 and 1987 concluded that 95 percent of women from Tijuana, Mexico who gave birth in the United States, admitted they did so to gain U.S. citizenship for their child.
In most cases, the bill is left to the taxpayers.
To reward people who enter our country in the dead of night, in violation of our laws, is unjust. In fact, it is a slap in the face to legal immigrants who often wait years to become American citizens. In my view, encouraging illegal entry into our country dishonors our long and rich heritage of legal immigration.
The effort expended in this pursuit is remarkable: we in San Diego County have been exposed, by our local news media, to scenes of expectant mothers in labor circling hospital parking lots in their cars, waiting until the last possible minute to enter the hospital. The child is delivered soon after the mother is admitted, denying authorities the chance to deport the mother.
Here are some of the benefits accorded illegal aliens on behalf of their child:
The parents may receive a welfare check on behalf of the child, under Aid to Dependent Children. Welfare benefits continue for 18 years.
They may receive food stamps. These benefits also continue for 18 years.
They may receive childcare payments and free milk, cheese and other subsidies.
Free education until the child turns 18 years old. Educating 355,000 citizen children of illegal aliens in California cost taxpayers $1.7 Billion in fiscal year 199596.
Illegal aliens are eligible to receive housing assistance from the county if their child is born in the United States. Assistance is based on one child. For every child born to the couple, the collar value of the voucher increases. With multiple births, the couple may receive housing vouchers for life.
And on behalf of the child the parents may also receive MediCaid, known in California as MediCal. This benefit continues for 18 years.
All this because the parents crossed our border.
The effect of illegal immigration on San Diego County is devastating. Southern California is a magnet to illegal aliens from Mexico and South America.
The state pays out more than $230 million in medical bills annually to support approximately 100,000 births by illegal aliens. That's 100,000 publicly-funded births every year, and climbing.
The strain on our schools, our housing, our hospitals, our social services and our criminal justice system Is enormous.
In 1995 when our last statistics were available, one out of every three births in San Diego County was paid for by Medi-Cal.
This represents an $11.5 million bill to San Diego County taxpayers.
The cost for all services to illegal aliens and their children in San Diego County alone is $64 million annually.
Magnify this cost throughout the State of California and you can see that the impact of children born to illegal aliens is staggering.
Children born to illegal alien mothers constitute the largest caseload increase among welfare applicants in counties across the state. In fact, while our welfare rolls due to welfare reform are on a decline, benefits for citizen children of illegal alien mothers are on the rise.
Denial of automatic citizenship to the children born to illegal aliens would help to stem the tide of illegal immigration.
Today the Fourteenth Amendment to the Constitution is misinterpreted to confer citizenship upon all persons who are born in the United States. However, the Amendment's original intent was to limit the scope to those who are ''subject to the jurisdiction'' of the United States.
Congress is fully authorized under the Fourteenth Amendment to enact legislation defining who is ''subject to the jurisdiction thereof.''
Clearly, people who are not legal residents are not ''subject to the jurisdiction thereof,'' and therefore their children should not automatically become citizens.
In fact, the case most often cited to justify precedent for automatically conferring citizenship on the children of illegal aliens, the United States v. Wong Kim Ark ruling of 1898, pertains to parents who were legal residents of the U.S.
The Supreme Court has never ruled on a case involving a child of illegal parents.
This constitutes a class of people ''not subject to the jurisdiction,'' just as diplomats constitute such a class-notably, their children are not granted citizenship upon birth.
I applaud Congressman Brian Bilbray for adopting a common sense approach to managing our borders. H.R. 7 presents an opportunity for the federal government to better manage taxpayer money. Our scarce resources are sorely needed at every level of education, science and technology, business competitiveness, rebuilding our infrastructure, defense and environmental protection.
We must not waste a single dollar, nor should we send a message to the entire world that if you violate America's borders, you will not pay-we will.
Now is the time to close this loophole to protect the integrity of our citizens and legal residents, and to stop the hemorrhage of taxpayer dollars caused by those who violate our laws for their own purpose.
Mr. SMITH. Thank you, Ms. Slater. Mr. Peters.
STATEMENT OF PHILIP PETERS, SENIOR FELLOW, ALEXIS DE TOCQUEVILLE INSTITUTION
Mr. PETERS. Thank you, Mr. Chairman. I'm from the Alexis de Tocqueville Institution and one our cochairs, Mr. Chairman, is a former Member of this body, Jack Kemp. He gave me a written statement on this bill, and with your permission I'd like to ask that it be entered into your record.
[Ed: Interesting. Jack Kemp was a presidential candidate in 1988. He did well, and was made Secretary of HUD by the winner, George Bush Senior.]
Mr. SMITH. OK, without objection, it will be made a part of the record.
[The prepared statement of Mr. Kemp follows:]
PREPARED STATEMENT OF JACK KEMP, COCHAIRMAN, ALEXIS DE TOCQUEVILLE INSTITUTION
I appreciate this opportunity to add my comments to the subcommittee's deliberations on H.R. 7, a bill that would deny birthright citizenship to children born in America to illegal immigrant parents.
Today and throughout history, immigrants have brought enormous benefits to America. I believe strongly that our system of legal immigration should be preserved. We must heed the words of Father Hesburgh who said that we must close the back door of illegal immigration in order to keep open the golden door of legal immigration. I also believe that America is entitled to have its laws respected, and those who seek an opportunity to come here should come as legal immigrants, in accordance with our laws.
In order to combat illegal immigration, H.R. 7 would violate a constitutional right guaranteed by the 14th Amendment-the guarantee that all children born in America are granted citizenship with equal rights and protections under our laws. This guarantee was put in place to prevent the revival of the Dred Scott decision of 1857, or any other means of excluding a class of Americans from full citizenship.
There are many reasons to reduce illegal immigration and there are many ways to achieve that objective. Violating a constitutional right is not one of those means, and I respectfully urge the subcommittee to reject this approach.
Congress comprehensively addressed the issue of illegal immigration in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by increasing border enforcement, increasing penalties for alien smuggling, and by making it more difficult for visitors to overstay legal visas and become illegal immigrants. Congressional oversight of the Immigration and Naturalization Service is undoubtedly having a further positive impact on the total effort to stop illegal immigration, and to increase respect for immigration laws.
To my mind, it is doubtful that elimination of birthright citizenship would have a significant impact on illegal immigration, or that it would even touch the fundamental incentive that brings many illegal immigrants to America-the desire to work and improve their lives.
Beyond its clear violation of the 14th Amendment, passage of H.R. 7 would create a new series of practical problems for citizens and government alike, as native-born Americans would have to prove their parents' citizenship in order to enjoy the rights and privileges of their own citizenship. This in turn would introduce new possibilities for racial and ethnic discrimination.
Lastly, it is absolutely clear that legislative efforts to circumscribe the 14th Amendment would raise a series of doubts and concerns about the bedrock civil rights protections that have been enshrined in our Constitution since the Civil War.
No aspect of today's illegal immigration problem justifies an assault on the 14th Amendment. Everything in our character as Americans-regardless of our party affiliation, regardless of where we were born-should lead us to venerate and preserve the structure of civil rights protections that the struggle and sacrifice of Abraham Lincoln and countless Americans produced a century ago.
Mr. PETERS. Thanks very much. And I thank you, Mr. Chairman and members of the committee, for inviting me here today.
I recognize that there are legal and constitutional issues being debated by legal and constitutional scholars. I leave those issues to be debated by them. I'd just like to say that as a citizen who studies immigration and reveres the Constitution, I respectfully offer you the opinion that H.R. 7 is bad policy. And I say that as one who agrees that we need to reduce illegal immigration.
This bill is a very powerful weapon. It's targeted at illegal immigration, but it misfires. It won't deter illegal immigration, but it will damage constitutional and civil rights. To pass it would be to break the fundamental civil rights guarantee of the 14th amendment-that children born here belong here and have the rights of American citizens, and that there will never be a native-born class of noncitizens that grow up in our country.
This guarantee is Lincoln's work. The Republican platform of 1864 envisioned it as a means to end the gigantic evil of slavery. And I would argue the 14th amendment's definition of citizenship has been a settled legal issue for over a century because it fits so naturally with the American people's concept of equality and our commitment to equality.
If this bill is passed, those commitments will be cast into doubt. And even if this measure would solve our contemporary problem of illegal immigration-and it won't-I believe that's too high a price to pay.
Mr. Chairman, the last official act of the late Barbara Jordan, who was a member of this committee and a chair of the Commission on Immigration Reform, was to discuss precisely these issues with you in December 1995. Let me recall that in her testimony she talked about the ''kind of perfection'' America has, ''because our founding principle is universal-that we're all created equal, regardless of race, religion, national ancestry.'' She discussed how this principle has progressively led to the enfranchisement throughout our history of citizens who own no land, then to women, and then to blacks. She concluded that, ''to deny birthright citizenship would derail this engine of American liberty.''
So my first argument to you, Mr. Chairman, is that this bill offers a solution that's misdirected and vastly out of proportion to the problem that it addresses. I see no issue in immigration policy today that justifies diluting or casting doubt on a fundamental civil rights guarantee. If we want to address the local costs of illegal immigration now, I believe we should look at possible financial remedies, but not constitutional change.
My second argument is that the bill won't accomplish its own goal. I don't know of any evidence that a large proportion of illegal immigrants are motivated to enter the United States to bear children as a first step to citizenship. Chairwoman Jordan, in the testimony I just referred to, reported to you that in the 3 years of her Commission's intensive research there were no reports, ''that the vast majority of births to illegal aliens are anything more than a reflection of the large numbers of illegal aliens who are here.''
Thirdly, I would argue that the bill is not needed because there are more appropriate and more targeted solutions already in place and they're taking effect. I'd like to review just a few of them. The new immigration law that is now in effect vastly increases for border enforcement. It provides new penalties for visa overstays and for all the activities that abet illegal immigration. Over a year ago, the administration stopped giving work permits to asylum-seekers awaiting adjudication of their claims. As you know, this blocked a significant route to illegal immigration, and, incidentally, it also made it a better system for people who genuinely need asylum.
Last week, the INS announced that it's going to deploy agents to 13 new offices overseas to combat alien smuggling rings on their own turf. And, perhaps more importantly, the pace of deportations of illegal immigrants is running 35 percent higher this year than last year, which was a record pace. Again, these measures promise to be effective and many are only beginning to be applied, and I believe that they offer one more reason not to change the 14th amendment.
And, finally, Mr. Chairman, I don't believe that H.R. 7 meets the test of practicality. It would cause a new, stateless class of residents to grow up in the United States, the first such class since the children of slaves before the Civil War. If these people, as adults, have accents, they will have to prove their parents' citizenship when they come into contact with their Government. They and Government officials will have new responsibilities to verify the status of, perhaps, their deceased parents. If they commit crimes but are specifically not of the jurisdiction of the United States, then prosecution or deportation might become difficult to conceive. The list of complications here, I think, is as long as a creative lawyer's imagination.
[Ed: That's right! If a child born here is not recognized as a U.S. citizen, but neither does he have claim to citizenship of any other nation, WHERE WOULD WE DEPORT HIM?]
(THE following is in a smaller font becuase it is a repeat of the preceding.)
So, Mr. Chairman, I would conclude that the problem of illegal immigration deserves your attention. It deserves all our attention. But I would respectfully urge the subcommittee to monitor the variety of measures that Congress passed last year and consider ways to adjust those measures if they need to be made more effective, if they're proving ineffective. But this bill is a major step backwards for civil rights; it won't deter illegal immigration, and so I respectfully submit to you that it doesn't deserve your support. Thank you.
[The prepared statement of Mr. Peters follows:]
PREPARED STATEMENT OF PHILIP PETERS, SENIOR FELLOW, ALEXIS DE TOCQUEVILLE INSTITUTION
Mr. Chairman, Members of the Subcommittee, thank you for inviting me to comment on H.R. 7, the Citizenship Reform Act of 1997.
This bill aims to change the meaning of the 14th Amendment so as to deny citizenship to children born in the United States to illegal immigrant parents.
I recognize that there is a legal debate as to whether this bill's purpose is most appropriately accomplished by statute or by Constitutional amendment. I leave that debate to lawyers and constitutional scholars. As a citizen who studies immigration and reveres the Constitution, I respectfully offer you the opinion that H.R. 7 is bad policy.
And I say that as one who agrees that we need to reduce illegal immigration.
This bill is a powerful weapon targeted at illegal immigration, but it misfires. It will not deter illegal immigration. Instead, it will damage constitutional and civil rights.
Passage of this bill would break the fundamental civil rights guarantee of the 14th Amendment-that children born here belong here and have the rights of American citizens, and that there will never again be a native-born class of non-citizens growing up in America.
This guarantee is Lincoln's work. The Republican platform of 1864 envisioned it as a means of ending the gigantic evil of slavery.
I would argue that the 14th Amendment's definition of citizenship has been a settled legal issue for over a century because it fits so naturally with the American people's commitment to equality.
If this bill is passed, the Constitution's commitment to equality will be cast into doubt. Even if this measure would solve our contemporary problem of illegal immigration-and it will not-that is too high a price to pay.
Mr. Chairman, the last official act of the late Barbara Jordan, a former member of this Committee and Chair of the Commission on Immigration Reform, was to discuss precisely these issues with you and your colleagues on December 13, 1995.
In her testimony, she cited the fundamental American idea ''that governments do not grant rights. We are born with them.'' She talked about the ''kind of perfection'' America has ''because our founding principle is universal: that we are all created equal regardless of race, religion or national ancestry.'' She discussed how this principle has led through our history to the enfranchisement of citizens who owned no land, then women, then blacks. She concluded: ''To deny birthright citizenship would derail this engine of American liberty.''
Based on these civil rights issues, my first argument is that the bill offers a solution that is misdirected, and is vastly out of proportion with the problem it addresses.
I see no issue in immigration policy today that justifies diluting or casting doubt on a fundamental civil rights guarantee. If it is necessary to address the high costs some jurisdictions incur due to concentrations of illegal immigrants, then we should look at possible financial remedies. Constitutional change should not be the first resort.
My second argument is that the bill won't accomplish its own goal.
I know of no evidence that a large proportion of illegal immigrants enter the U.S. to bear children as a first step to citizenship. I am aware of no Immigration and Naturalization Service (INS) or Border Patrol report showing high rates of apprehension of pregnant women hiking across our borders. And Chairwoman Jordan reported to you that in three years of the Commission's intensive research, there were no reports ''that the vast majority of births to illegal aliens are anything more than a reflection of the large numbers of illegal aliens who are here. The reason most illegal aliens come to our country boils down to three words: They get jobs.''
My third argument is that the bill is not needed because other solutions are in place and need time to work.
Let me review some steps recently taken to reduce illegal immigration.
The new immigration law vastly increases resources for border enforcement; it provides new penalties for visa overstays and for the activities that abet illegal immigration, from alien smuggling to document fraud.
Over a year ago, the Administration stopped giving work permits to asylum seekers awaiting adjudication; this blocked a significant route to illegal immigration.
Last week, the INS announced that it will deploy agents to thirteen new offices overseas to combat alien smuggling rings on their own turf.
And the pace of deportations of illegal immigrants is running 35 percent higher than the record pace of 1996.
These measures promise to be effective, and many are only beginning to be applied. They offer one more reason not to change the 14th Amendment.
Finally, H.R. 7 does not meet the test of practicality.
If this bill goes into effect, a new stateless class of residents will grow up here, the first such class since the children of slaves before the Civil War. If they have accents as adults, these individuals may have to prove their parents citizenship when they come into contact with their government. They and government officials will have new responsibilities to verify the status of deceased parents. If they commit crimes, but are not subject to the jurisdiction of the United States, prosecution and/or deportation become difficult to conceive. The list of complications is as long as a creative lawyer's imagination.
And last but not least on the list of practical issues is the certainty that H.R. 7 will be challenged on many grounds, including that it may violate the clearly prescribed means of changing the Constitution enumerated in Article V.
In conclusion, Mr. Chairman, the problem of illegal immigration deserves your attention. But I would respectfully urge the Subcommittee to monitor the variety of measures Congress passed last year, and to consider ways to adjust these measures if they prove ineffective in practice. This bill is a major step backwards for civil rights, and it will not deter illegal immigration. It does not deserve your support.
Mr. SMITH. Thank you, Mr. Peters.
STATEMENT OF GWAT BHATTACHARJIE, SANTA BARBARA, CA
Ms. BHATTACHARJIE. Mr. Chairman, members of the subcommittee, first I want to thank you for giving me the opportunity to address you. It's a singular honor for me to be here. I'm Gwat Bhattacharjie from Santa Barbara, CA. I'm here to address the importance of H.R. 7, Congressman Brian Bilbray's bill, which is an amendment to the Immigration and Nationality Act of 1996, that is to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.
I am an immigrant, of Chinese ethnicity, born and brought up in Indonesia. I had my later education in Australia. In 1960, after having graduated from the University of Queensland with a B.A. and a diploma in education, I was offered a master's scholarship at the University of Rochester, New York. In Sydney, the consular staff was not receptive toward issuing me an I20, or student visa, despite the fact that I had two sponsors: the University and a Texas A&M professor. I proceeded to New Zealand, where I had a temporary teaching job, and while there was able to obtain an I20 from the U.S. Embassy in Wellington.
While at the University of Rochester, I met my future husband, an Indian physicist who came to the United States as a Fullbright Exchange Fellow after completing his Ph.D. at Delhi University. We were married at the end of 1962 and went west to his next job at Northrop Space Labs. At Northrop's request and sponsorship, my husband's status was changed and we were under so-called docket control for the next 5 years before obtaining permanent resident visas. What docket control means is that you cannot leave the country while you are in that status. You have to stay in the United States.
We applied for citizenship as soon as we became eligible and were sworn in on September 1974. It took 14 years from the time I entered the United States to the granting of citizenship. And may I stress here that there is a tremendous amount of frustration among legal immigrants, as well as, of course, the citizen constituents, about this loophole: this birthright citizenship.
Our citizenship is the most precious right that can be conferred to us. It gives us the right to vote. And my husband and I have voted in every election ever since and I have been a precinct inspector for maybe about 20 years in elections.
I have lived in southern California almost continuously since late 1962. I have seen a dramatic sea change, especially in the demographics of the area, caused by both legal and illegal immigration that is out of control that impacts upon all of us. I am very much for legal immigration, being an immigrant myself, and I recognize the benefits of legal immigration. However, communities are burdened by crime and violence, by overcrowded schools and housing, growth in gangs and drugs, by rising racial tensions and separatist movements, by incessant poverty and maybe a new permanent underclass.
The 14th amendment, which was originally meant to extend citizenship to native-born blacks, is construed as a universal rule of birthright citizenship. Coupled with attendant benefits like AFDC, subsidized housing, et cetera, it has become an irresistible lure to hundreds of thousands of illegal women who give birth in our hospitals. It impacts us, too, in Santa Barbara.
In 1992, over 96,000 babies were born to illegal immigrants at a cost of $230 million to the State of California. Two-thirds of babies born in Los Angeles County, as Ms. Slater mentioned, are to illegal alien mothers. In my county of Santa Barbara, prenatal illegal alien care costs $800,000 and it's $65 million for the whole State last year. That's prenatal, illegal alien care. Many babies qualified and get AFDC immediately. Forty-one percent in San Diego County, for instance, in 1992 qualified for this.
In fiscal year 199495, 193,000 children of illegal immigrants received welfare at a cost of $553 million. They grow up, these children. How about the cost of schooling for these kids? Four of our 10 elementary schools in Santa Barbara city are 90 percent Hispanic, or 66 percent overall, in the entire district. And since 1989, 80 percent of new increased enrollments are of limited-English-proficiency kids.
These are the costs of importing poverty. The 14th amendment has become the back door to instant citizenship. It is an insult to us who came and waited to come legally-to legitimize and to reward an illegal act. Most countries in the world, including Australia, Norway, Korea, Sweden, Britain, Germany, require one parent at least to be either a citizen or a legal resident. Considering that there are almost 6 billion people in the world and the United States is the premiere destination of most immigrants, we can literally use the slogan ''Go for broke'' and fulfill it. As a Hispanic friend of mine who daily watches the activities of an illegal immigrant family living in subsidized housing across her house says, ''It doesn't pay to be good and law-abiding.'' There's a lot of frustration.
This is neither a Democratic nor a Republican concern. It is an American concern. It's time to trim Santa Claus and make him Uncle Sam again. On behalf of the millions of legal immigrants who are patiently waiting for their turn to immigrate to the United States, I urge you to see that justice is done, and pass H.R. 7 unanimously.
And I have an addendum, with your consent, please.
Mr. SMITH. Would you like to make that part of the record?
Ms. BHATTACHARJIE. Yes, please.
Mr. SMITH. And, without objection, we will.
It's not just California which is being affected; it's the whole of the United States.
So Congress must act with the times and lead the way. There is a gap, I find as a citizen between what Congress passes and what the executive branch does. We still have 500 Border Patrol agents that are promised to us that have yet come.
I want to remind Ms. Lofgren, if she were here, that the burden is not southern California/northern California; the burden is California's, and in many other States as well.
The issue has not been dealt with before, but it needs to be dealt with now. We need a definition, maybe a clarification, of what the 14th amendment stands for. What is an illegal alien? Does he or she have status or not? I think you need to deal with it.
I know what my status is, but we often refuse to use the word ''illegal alien.'' We go round and round the bush and say all kinds of names, like ''undocumented aliens or citizens.''
[The prepared statement of Ms. Bhattacharjie follows:]
PREPARED STATEMENT OF GWAT BHATTACHARJIE, SANTA BARBARA, CA
Mr. Chairman and Members of the Subcommittee, first I want to thank you for giving me the opportunity to address you. It's a singular honor for me to be here. I'm Gwat Bhattacharjie, from Santa Barbara, California. I'm here to address the importance of H.R. 7, Congressman Brian Bilbray's bill which is an amendment to the Immigration and Nationality Act of 1996 that is to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.
I am an immigrant, of Chinese ethnicity, born and brought up in Indonesia. I had my later education in Australia. In 1960, after having graduated from the University of Queensland with a B.A. and a diploma in education, I was offered a Masters scholarship at the University of Rochester, New York. In Sydney the Consular staff was not receptive towards issuing me an I20 or Student Visa, despite the fact that I had two sponsors-the University and a Texas A&M professor. I proceeded to New Zealand where I had a temporary teaching job and while there, was able to obtain an I20 from the United States Embassy in Wellington.
While at the University of Rochester, I met my future husband, an Indian physicist who came to the United States as a Fullbright Exchange Fellow after completing his Ph.D. at Delhi University. We were married at end of 1962 and went West to his next job at Northrop Space Labs. At Northrop's request and sponsorship, my husband's statuses changed and we were under ''docket control'' for the next five years before obtaining permanent resident visas. We applied for citizenship as soon as we became eligible and were sworn in on September 1974. It took fourteen years from the time I entered the United States to the granting of citizenship. Our citizenship is the most precious right that can be conferred to us which gives us the right to vote. We have voted at every election since.
I have lived in Southern California almost continuously since late 1962. I have seen a dramatic sea change-especially in the demographics of the area, caused by both legal and illegal remigration that is out of control that impacts upon all of us. Communities are burdened by crime and violence, by overcrowded schools and housing, growth in gangs and drugs, by rising racial tensions and separatist movements, by incessant poverty and maybe a new permanent underclass.
The 14th Amendment which was originally meant to extend citizenship to native-born blacks, is construed as a universal rule of birthright citizenship. Coupled with attendant benefits like AFDC, subsidized housing, etc., it has become an irresistible lure to hundreds of thousands of illegal women who give birth in our hospitals. In 1992 over 96,000 babies were born to illegal immigrants at a cost of $230 million to the state of California. Two-thirds of babies born in Los Angeles County hospitals are to illegals. In my County of Santa Barbara, pre-natal illegal alien care costs $800,000 and it's $65 million for the whole state last year. Many babies qualified and get AFDC immediately (41% in San Diego County in 1992). In fiscal 199495, 193,800 children of illegal immigrants received welfare at a cost of $553 million. How about the cost of schooling for these children? Four of our ten elementary schools in Santa Barbara are 90% Hispanic (66% overall) and since 1989 80% of new increased enrollments have limited English proficiency.
These are the costs of importing poverty. The 14th Amendment has become the back door to instant citizenship, to legitimize and reward an illegal act. Most countries in the world, including Australia, Norway, Korea, Sweden, Britain and Germany require one parent at least to be either a citizen or a legal resident. Considering that there are almost six billion people in the world and the United States is the premier destination of most immigrants, we can literally use the slogan ''Go For Broke!'' As a Hispanic friend of mine who daily watches the activities of an illegal immigrant family living in subsidized housing across her house says.'' It doesn't pay to be good and law-abiding.''
This is neither a Democratic nor a Republican concern. It is an American concern. It's time to trim Santa Claus and make him Uncle Sam again. On behalf of the millions of legal immigrants who are patiently waiting for their turn to emigrate to the United States, I urge you to see that justice is done and pass H.R. 7 unanimously. Thank you.
Mr. SMITH. Thank you, Ms. Bhattacharjie.
I'm going to recognize the gentleman from North Carolina, Mr. Watt, who has to leave because he has another committee meeting that is going on concurrently with ours, and then I'll ask my questions after Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I want to apologize to these witnesses for not being able to be here to hear the exchange, question and answer exchange. I really needed to have been at this other committee meeting during the testimony, but I wanted to hear the testimony, and I'm going to have to slip out so I can get back in time to hear the next panel, if I can.
Let me, first of all, be clear with Ms. Slater that it is not my position that this bill ought to pass and this ought to be the springboard to Supreme Court review. I have no problem with the Supreme Court reviewing this issue based on the Constitution as it is currently written, if somebody gets a case before the Supreme Court, but I hope nobody leaves here today with the impression that I think passage of this bill would be a justifiable way to get us Supreme Court review. So I want to make sure-and I assume you understand that, but it was one of the witnesses who said that one way to get Supreme Court review would be to pass this bill, but I agree with Mr. Peters wholeheartedly; that would be a cost that I would not be willing to bear, as a mechanism for getting us to the Supreme Court.
If somebody wants to get us to the Supreme Court, get a case before the Supreme Court under the Constitution as it's written, I'll be happy, as I always have, even when I've disagreed with the Supreme Court in a number of cases; the Supreme Court is the ultimate arbiter, and if they interpret it one way, then we would have to abide or we would have to amend the Constitution. I would take it amending the Constitution works both ways. I mean, it can-you can take away; you can give it.
The thing I'm a little troubled by is this notion that Congress can just kind of set whatever rules it wants in the context of, you know-and interpret the Constitution so as to accomplish some objective, just because the border is close. The border-this doesn't have anything to do with where the border is. The border-our Constitution goes all the way to that border, whether you can see it or whether you can't see it. And so my interpretation of this is not going to change-if I was standing, looking at the border, my interpretation would be exactly the same as it is, and I don't think this can be accomplished without a constitutional amendment. And if we want to deal with a constitutional amendment, then we ought to deal with that. At least we would be taking it on directly.
I think if we start, as a Congress, deciding what makes sense and applying that to the Constitution, that we might even get to the point where legal aliens may not-bearing children-might not be eligible for citizenship. And then maybe we would be drawing a line that people would start-well, now, see, you're flinching, Ms.-I'm afraid I can't pronounce your name, but you flinch at that notion. [Laughter.]
Ms. BHATTACHARJIE. Not because of that.
Mr. WATT. Well, I flinch at it, too, but I flinch at it, as much at the notion that you would do that to the children who have done absolutely nothing, of somebody who has even made a decision to come here to benefit their children. You would visit the sins of the parents, if you assume that's a sin, you would visit those sins on the children, who certainly didn't make any judgment that they were going to do anything illegal.
So I just-you know, maybe this is a good time for me to leave, now that I've gotten on my soapbox. [Laughter.]
I promised Mr. Bilbray and the chairman I wasn't going to do that today, and I've tried to restrain myself, but I'm deeply troubled by not only the bill, but by some of the suggestions that have come forward in the testimony.
Ms. BHATTACHARJIE. Begging your pardon, Mr. Watt, it is irrelevant. There should be a definition of ''legal'' and there should be a definition of ''illegal.'' And I don't think it's going to be my--
Mr. WATT. Well, the question is, who's going to set it? Is the Congress going to set it or is the U.S. Supreme Court going to interpret the Constitution that I believe has already set it? And I will tell you, if we start setting it, and you get on that slippery slope, there may be some other people who will become vulnerable, too. And those of us who are here and start pulling up the ladder behind us would do well to worry, to take that advice.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you. Thank you, Mr. Watt.
Let me go to myself and direct my first question to Dr. Erler. Now, Dr. Erler, I found your testimony persuasive, and I also found the words of Senator Howard on the Senate floor during the debate on the 14th amendment to be persuasive as well. I don't know how you can ignore the clear meaning of his words.
But the question I had for you is: What is the advantage, why should we pursue Mr. Bilbray's bill as opposed to seeking a constitutional amendment? What are the advantages of trying to change the definition by statute rather than by the Constitution?
Mr. ERLER. Well, I'm of the opinion, as I think you probably are, too, that we ought to amend the Constitution as infrequently as we possibly can. In this instance, I think that Congress has complete power under section 5 of the 14th amendment to define jurisdiction, to define who is within the jurisdiction of the United States, and in fact has done so on many, many occasions. And so I think that legislation which could cure this increasing public problem that we have is the preferred step.
Mr. SMITH. OK, thank you, Dr. Erler.
Ms. Slater, both you and Ms. Bhattacharjie mentioned some statistics that I think are also relevant, one being that 16 percent of the births in California apparently are to illegal aliens, and your poll about the 95 percent of the women from Tijuana who were asked why they came saying that they came in order that their children would become U.S. citizens.
Are you aware-and this is a little bit of a question that I don't know the answer to, but I've heard-that there is actual advertising done in our neighbor to the south, in Mexico, that actually advertises the benefits of citizenship birth, advertises the Federal benefits that are available if a child is born in the United States to illegal aliens? Are you personally aware of any such advertising or flyers or any kind of communication?
Ms. SLATER. Yes, I am, where they have been forwarded to my office. They also have advertisements on media and on radio, and for a while there were actually bus panels that advertised: Please call this number. It doesn't matter if you're legal or illegal; call this number. And it was in Spanish and in English. Those have been taken down, and they were on both sides of the border.
And advocacy groups frequently advise their clients on how to proceed through the system, and documents that come from advocacy groups reach my office--
Mr. SMITH. So you have no doubt that that's an incentive for a lot of individuals who come to the United States to give birth?
Ms. SLATER. I have no doubt.
Mr. SMITH. You also made a point which I thought was good in your citing the cost of various Federal benefits that are provided to individuals with children born in the United States. I think it's good to point out that there are only a limited number of taxpayers' dollars or even Federal dollars, if you look at it from the other direction, and to the extent that we are forced to provide Federal aid to the children of illegal aliens, that means, obviously, there is less aid to the children of U.S. citizens.
Mr. Peters, let me ask you a little bit of a followup of what I did to Ms. Slater, which is to say that, if in fact 16 percent of the births in California are to illegal alien mothers, and if that poll is accurate-and I assume there is no reason to believe that it's not-that 95 percent of the women who give birth in San Diego from Tijuana, Mexico, cited as a reason for coming to the United States the citizenship of their child, if born in the United States, doesn't that conflict a little bit with your testimony that the bill would not deter illegal immigration? It seems to me that those polls would indicate that it would do just that.
Mr. PETERS. Well, that's the first I've heard of that poll, and in preparing my testimony, I checked around and looked for exactly that kind of evidence. That's the first time I've seen it, and I would certainly like to look into that.
My view, Mr. Chairman, is that if there are costs that border communities especially incur due to illegal immigration, that we should consider financial remedies for those, and that a constitutional remedy is not the way to go; that the cost in terms of civil rights policy, the cost in terms of the perception that civil rights guarantees are eroding, is not worth it.
Mr. SMITH. Mr. Peters, let me follow up from another angle.
Mr. PETERS. Yes.
Mr. SMITH. And that is, you mentioned in your testimony, the last part of your testimony, the three things that we could do to reduce illegal immigration, one of them being strengthen last year's immigration bill. Is the Tocqueville Institution opposed to illegal immigration? Would they like to see zero illegal immigration?
Mr. PETERS. I'm speaking for myself here, Mr. Chairman. I don't support illegal immigration. The Congress--
Mr. SMITH. I just want to make-I'm not challenging that; I just want to make that clear.
Mr. PETERS. The list of measures that I cited, which, as you know, are a partial list of the things that that law did--
Mr. SMITH. Right.
Mr. PETERS [continuing]. To deter illegal immigration, I support what I cited there.
Mr. SMITH. If my colleagues to the right will allow me, I'm going to ask one more question to Ms. Bhattacharjie. Ms. Bhattacharjie, in your testimony when you said that you would be insulted-it is insulting to legal immigrants to continue to allow children born to illegal aliens to become citizens, what did you mean by ''insulting to legal immigrants?'' Would you expand on that?
Ms. BHATTACHARJIE. Mr. Chairman, it took me 14 years to be a citizen, and that was because of my own free will. I became a resident of this country, and if you live, reside, in a country and you enjoy the benefits, you should also accept the responsibilities of citizenship. One of the carrots that we have is the right to vote. It's very important.
It's insulting because we had to go through a lot of rigmarole in order to be eligible and to come here. I wasn't issued an I20 visa automatically, although I had a reason to come here. In fact, one of the things that they said was, ''Why don't you continue your education in Australia?'' And I said, ''Well, the scholarship that was offered to me was not from an Australian university, but from an American university.'' I must stress at that time that my own country was in a precarious political condition because Indonesia under Sukarno, President Sukarno, was aligned toward-although we carried out a nonalignment policy, was very friendly toward Communist China. And so my parents were advising me not to go home, and one way out, was to come here.
But, despite the fact that I had to go through some difficulty in getting an I20 visa, that was just part of the beginning. I have many friends who have found it even much more difficult than what I have gone through. I thought mine was not a dramatic case of how difficult it was to come here. And I think it's an insult to us who came here legally to find that the difficulties that we had confronted were nothing.
Mr. SMITH. I think that answers my question. Thank you, Ms. Bhattacharjie.
[Ed: Wow! It sure doesn't answer MY questions! The question was "Why is it insulting to legal immigrants to allow children born to illegal aliens to become citizens?" The answer: "I had such a hard time because of the outrageous INS red tape, and it is insulting that some of my friends had an even harder time!" That was an answer? Sounds like we're back to having to guess. How about this guess: "I'm jealous. I'm not sympathetic with my brother for having the same straight-from-Hell INS to deal with that I did. If the INS treats someone else better than me, I'm insulted! I want the INS to treat everyone else even worse than me, so that I will feel some self-respect!"
I'm going to go and yield to the gentleman from Indiana, Mr. Pease.
Mr. PEASE. Thank you, Mr. Chairman.
I was going to focus most of my questioning on the constitutional and legal side of this, because philosophically I'm already sympathetic to the problem that's being addressed here. But, having said that, my first question is actually on the policy rather than on the constitutional argument, and that goes to Mr. Peters.
We heard from Ms. Slater of her direct observation, and then the poll information, of women who specifically came here to have children. And, yet, your testimony is that this kind of legislation won't deter that from happening. What's your basis for that assertion?
Mr. PETERS. Well, as I began to discuss with the chairman, sir, that's the first I've heard of that poll. I've checked-I don't know of any INS report or any Border Patrol report or any scholarly study that indicates that the motivation for illegal immigrants to come here is primarily to bear children, and then through that, to gain citizenship. As I mentioned, the Jordan Commission in 3 years of work got no information to that effect. So that's the basis of my statement.
Mr. SMITH. Mr. Peters, I'd have to point out, having read that Commission report, I don't think they ever asked or pursued that line of questioning. In other words, I don't think they made a statement one way or the other. I wouldn't want you to imply that they looked and didn't find any evidence.
Mr. PETERS. Well, I'm saying that, in their information-gathering, nothing came to them, nothing was presented to them--
Mr. SMITH. Well, if you don't ask the question, you're not going to get the answer.
Mr. PETERS [continuing]. They found nothing on that score.
Mr. SMITH. I apologize for interrupting, Mr. Pease, but I just wanted to make sure that that was clear.
Mr. PEASE. Well, I understand your statement, your allegation, that there isn't any data, other than this poll and the personal observations of Ms. Slater and perhaps others, but I still don't understand why you believe that this would not stop those people-or at least deter those people-who come here specifically for that reason, if not for other reasons that people immigrate here illegally.
Mr. PETERS. Well, my belief, based on what I've seen and what I have not seen in the research that's been done in this area, is that the proportion is very small, and that if there are people who come here precisely for that reason, exclusively for that reason, then, yes, this would deter them, but that the costs, which I enumerated elsewhere in my statement, do not justify that measure.
Mr. PEASE. And those costs are? You believe that it's an abuse of a reading of the Constitution; that's the cost you're talking about?
Mr. PETERS. Yes, yes.
Mr. PEASE. And so you would-I don't want to put words in your mouth, but I understand you to be saying that the wording, as you read it in the Constitution, is an absolute statement that any child who's born here is an American citizen?
Mr. PETERS. Yes. That children born here that are not in those categories that were enumerated, the tribes and Native Americans or children of diplomats--
Mr. PEASE. And why are those different then, if it's an absolute reading of the Constitution--
Mr. PETERS. They're specifically excluded.
Mr. PEASE. Not in the Constitution, which is what you're relying on.
Mr. PETERS. I'm sorry?
Mr. PEASE. Not in the Constitution on which you're relying.
Mr. PETERS. What I'm-again, the interpretation has been for all these years that children born here have the right of citizenship, according to the 14th amendment, and the 14th amendment was created to prevent that a specific class of people would grow here without the rights of citizenship.
Mr. PEASE. I guess I'm not disagreeing-apparently, you're misinterpreting-I'm not disagreeing with your observation. I guess what I'm getting at is that it appears that even your statement is that there's an interpretation of the 14th amendment at work here, and it has interpreted not to deal with Native Americans, not to deal with children of diplomats who are born here, not considered American citizens, rather than an absolute prohibition. And so it would seem to me, if one can argue that there it has been interpreted through the years to exclude certain classes, and has not addressed the class that we're discussing today, that that issue is still open for consideration; there is not an absolute prohibition.
[Ed: No, because even though the class we're discussing today didn't exist then, there were clear and obvious reasons why the classes not included were not included, and none of those reasons applies to "illegals".]
Mr. PETERS. Right. Well, then we could go back to the Wong Kim Ark case, which I will not do. Maybe I should clarify, Mr. Pease. There are means of amending the Constitution, and legislation can be brought to bear on interpretation of the Constitution. I don't question that those measures are available to the Congress. You're legislators; that's what you're here for-to consider these problems and what remedies apply. I don't think that-I don't believe that it's a policy that will be effective or one that is justified in terms of the costs and benefits that are in front of us. But if I was implying to you that Congress has no right to address this issue, that's not what I meant to say.
Mr. PEASE. Thank you very much. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
Next subject: checking voter registration lists with Social Security and INS computers.
(Only a little of this discussion is included; the rest is omitted from this file because it is another subject.)
We'll go to the next panel, but before we do, I'd like to thank all of you for your contributions, and also point out that I realize that three of you-Dr. Erler, Ms. Slater, and Ms. Bhattacharjie-all came from California on short notice, and we appreciate your taking the time and the effort to do so. So thank you all.
Ms. Slater, a final request here?
Ms. SLATER. Just a final-I'm sorry to interrupt you, but I just wanted to make one statement because it seems to have gotten confused. I don't believe that what is before you today is a proposal for a constitutional amendment. I believe what is before you today is a proposed amendment to the Immigration and Naturalization Act--
Mr. SMITH. That's correct.
Ms. SLATER. and it's a clarification of the existing language of the 14th amendment, and I believe that Dr. Erler's very excellent and scholarly treatise which I read last night on the plane, fully elucidates a number of the concerns that were brought forward by Mr. Watt and others.
Mr. SMITH. Ms. Slater, that is a good point-that we are not trying to amend the Constitution; we are trying to amend the statute. I appreciate that.
Thank you all again.
On the first panel for this hearing on H.R. 1428, Citizenship Reform Act of 1997, we have our colleague, Congressman Steve Horn from California.
Steve, we welcome you.
[Mr. Smith uses the gavel.]
Mr. SMITH. Let me quiet the crowd here.
[The bill, H.R. 1428, follows:]
Mr. SMITH. Mr. Horn, thank you for your patience. I know you've been waiting around for several hours, but we do, therefore, value your testimony even more. Please proceed.
STATEMENT OF HON. STEPHEN HORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. HORN. Well, I thank you, Mr. Chairman. You've been a real leader in this field.
This is a proposal called the Voter Eligibility Verification Act because it would empower local election officials-and that would include State officials who are chief election officers-to be able to make inquiries with the Social Security Administration data base, where they have been keeping track of citizenship since 1982, and the Immigration and Naturalization Service data base, where they have the alien file and updated when one is naturalized and becomes a citizen.
There's no mandate on State or local governments to use either one of these data bases, but if they would like to do it in order to implement the bill that you authored and has become law in the last Congress, they need the authority to come and deal with a data base that is kept up to date as best it can be. And this would authorize them, then, to access that. It requires the update, as I've mentioned. It has extensive restrictions on any misuse of the verification process to prevent discrimination, violations of privacy. And if people are not verified by those two systems, then the opportunity is with the potential citizen and the potential voter to provide proof of registration and citizenship, proof of citizenship, to the registrars-and whether that's a family bible, or whatever document they can get, a birth record, so forth.
And, as I mentioned, last year your Immigration Reform and Immigrant Responsibility Act made it explicitly illegal for noncitizens to vote and made voting by noncitizens a deportable offense. But without having any way to verify registrants' eligibility to vote, State and local officials can't do anything, frankly, to enforce that law. That was our problem with Simpson-Mazzoli. It was great law. A lot was accomplished, but there was no enforcement mechanism. And it's been far too easy to register to vote since the Motor Voter vote. As a political scientist, I'm all for getting as many people on the rolls as you can, but I think we would all agree-and I don't know anybody I've ever met in public office that disagreed-that one should be a qualified citizen to vote.
And when you have, as I had in my district, the assassin of the Mexican presidential candidate registered to vote twice in Los Angeles County, where my district is located-now he never did vote, but he registered to vote twice, and then, of course, freely crossed the border, since it's a sieve. And of course that, just as an aside, Mr. Chairman, I would think everybody east of California-and since we'll include Texas now, east of the Mississippi-ought to realize that when they don't help us grapple with the illegal alien problem, they're simply going to lose seats to us every census. We gained seven last time. We'll gain another five to seven, unless people start helping us deal with what is not a Southeast problem, not a Southwest problem; it's increasingly an American problem.
And we are not interested in trying to stifle immigrants who have naturalized; we just simply want the records classified. My father was a naturalized immigrant, and there is a process, and we should follow that process.
I listened to some of the earlier testimony, and I think of friends of mine who are Filipino, who are from India; they've been sitting in line legally to wait for years, and it's just simply unfair that 49 other countries can get into the United States from either land or sea, nor through Southeast or West, and people that want to be good citizens and come here and have made a great contribution, when they do come here, are sitting there stalled by the legal process, whereas if they took the illegal process, in one night they could be in the United States, but they'd have difficulty-or they should have difficulty-taking that route to become a citizen.
[Ed: Oh, I see. It's unfair that God made Mexico right next to the U.S. but made the Phillippines so much farther a swim. Does anyone mind the unfairness that so much larger a percentage of those who want to come from any other country may come legally, except Mexico? Why not stop griping about how all this Hellish red tape isn't being shared equally, and replace quotas with criteria so that EVERYONE may come? Why not work together to end the Hellish red tape, rather than just make enough more of it that everyone may suffer an equal share?]
So I think the legislation strikes a vitally-needed balance in this area. I think, as I mentioned earlier, the privacy and antidiscrimination language in here ought to stop any misuse of those data.
So I'd like to respond to questions.
[The prepared statement of Mr. Horn follows:]
A P P E N D I X E S
Appendix 1.-Letter Dated June 24, 1997, From James T. Beall, Jr., Chair, Board of Supervisors, County of Santa Clara, CA
Board of Supervisors,
County of Santa Clara, CA,
San Juan, CA, June 24, 1997.
Hon. LAMAR SMITH, Chair,
Subcommittee on Immigration and Claims,
House Judiciary Committee,
DEAR MR. CHAIRMAN: The Santa Clara County Board of Supervisors urges you to oppose H.R. 7 (Bilbray), which would deny automatic citizenship to children born in the United States.
H.R. 7 would confirm citizenship only on children born in the United States to a citizen or legal resident. This proposal stands in direct contradiction to the Fourteenth Amendment to the United States Constitution, as well as the basic principles of equality and justice upon which our country was founded. Ultimately, H.R. 7 would deny the right of citizenship to children solely due to the citizenship status of their parents, when these children are no different from the offspring of American citizens.
Santa Clara County is also concerned about the administrative difficulties posed by H.R. 7 upon doctors and hospitals. In addition, health care professionals in our county hospital adamantly oppose efforts to link citizenship status with medical services.
H.R. 7 is likely to be unconstitutional, and represents poor public policy. Our Board asks that you oppose this legislation.
James T. Beall, Jr.,
Chair, Board of Supervisors.Appendix 2.-Prepared Statement of the Mexican American Legal Defense and Educational Fund
STATEMENT REGARDING H.R. 7
The Mexican American Legal Defense and Educational Fund (MALDEF) appreciates the opportunity to submit testimony regarding proposed changes to the Fourteenth Amendment to the United States Constitution. MALDEF is a national nonprofit organization dedicated to protecting and promoting the rights of Latinos in the areas of education, employment, political access, immigration, and language rights.
H.R. 7 purports ''to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.'' Congress must not adopt H.R. 7 because it would be in clear violation of the Citizenship Clause of the Fourteenth Amendment of the Constitution and the Civil Rights Act of 1866, violate the Equal Protection Clause of the Fourteenth Amendment, and ignore State sovereignty in the area of marriage laws.
Denial of Citizenship By Birth Is A Violation of the Citizenship Clause of the Fourteenth Amendment
The Immigration and Nationality Act incorporates the Fourteenth Amendment at Section 301(a) by stating that ''a person born in the United States, and subject to the jurisdiction thereof'' shall be a citizen of the United States at birth.(see footnote 41) Section 3 of H.R. 7 would change the definition of ''subject to the jurisdiction'' to extend citizenship only to: (1) persons born in wedlock to a parent who is a citizen or permanent resident, where State common law marriage laws are not recognized by the Federal Government; or (2) persons born out of wedlock, including common law marriages, where the mother is a citizen or permanent resident, regardless of the father's citizenship or immigration status. While H.R. 7 purports to change only immigration law, it would in effect repeal the Citizenship Clause of the Fourteenth Amendment as restated in the applicable immigration statute.
Citizenship Clause and Civil Rights Act of 1866
Throughout our history, the law of this country has recognized those born in this country are citizens of this country. At first, the rule existed only as common law inherited from the Anglo-American common law principle of jus soli.(see footnote 42) When this country moved away from the principle of birthright citizenship in decisions such as Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857) (''Dred Scott''), civil war resulted. Dred Scott held that a person of African descent born in this country was not a citizen of the United States. After Dred Scott and the Civil War, Congress passed the Civil Rights Act of 1866 reversing the Dred Scott decision. The 1866 Act provides: ''[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.'' Soon after, Congress and the States added the Fourteenth Amendment to the U.S. Constitution. The first sentence of the Fourteenth Amendment, known as the Citizenship Clause, provides: ''All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.''
The 1866 Act and the Citizenship Cause were designed to place into our statutory laws and the Constitution respectively our common law heritage of birthright citizenship and ensure its extension to U.S.-born children of African descent. Both the 1866 Act and the Citizenship Clause incorporated the limited exceptions to birthright citizenship from our common law tradition, which excluded citizenship to children born to foreign ambassadors, on foreign ships, or to foreigners during a hostile occupation of our territory.(see footnote 43) The 1866 Act and the Citizenship Cause also did not extend birthright citizenship to tribal Indians.(see footnote 44) This last exception was based on the unique status of Indian tribes that are recognized as sovereign nations.(see footnote 45)
Supreme Court Consideration of Birthright Citizenship in the Wong Kim Ark Decision
The Supreme Court has considered the specific question of whether birthright citizenship could be denied based on the immigration status of a child's parents, and answered that it would be an unconstitutional violation of the Fourteenth Amendment.(see footnote 46) In the Wong Kim Ark decision, the U.S.-born son of Chinese nationals claimed U.S. citizenship during the time of the Chinese Exclusion Acts,(see footnote 47) which provided for the expulsion of Chinese persons from the United States and prohibited their eligibility for citizenship through naturalization. Even though Wong Kim Ark's parents themselves could not become citizens under the law that existed, the Court found that with few exceptions, the Citizenship Clause of the Fourteenth Amendment must be read broadly to extend birthright citizenship to all persons born in the United States regardless of their parents' immigration or citizenship status. The Court stated:
The Fourteenth Amendment, while it leaves the power, where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.(see footnote 48)
Thus, taken together, the Citizenship Clause in the Constitution, along with the Wong Kim Ark decision, deny the constitutionality of H.R. 7.
Arguments That Deny Citizenship By Birth Fail
Proponents of limiting birthright citizenship are wrong to claim that the Wong Kim Ark decision does not apply to U.S.-born children of undocumented persons based on the notion that Wong Kim Ark's parents were legal resident aliens. Wong Kim Ark clearly stands for the proposition that the status of the parents does not matter under our U.S. Constitution. The Court enumerated the limited exclusions from birthright citizenship as ''children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.''(see footnote 49)
Actually, looking at the facts of Wong Kim Ark, although the plaintiffs parents were here legally, they were here at a time when our country had passed racist statutes that prohibited them, because they were Chinese, from having the chance to become U.S. citizens. Although here legally in a technical sense, Wong Kim Ark's parents had been reduced to a status worse than being undocumented since they had no chance to naturalize.
Proponents of limiting birthright citizenship illogically and wrongfully suggest that undocumented persons are not ''subject to the jurisdiction'' of the United States as that phrase appears in the Fourteenth Amendment. In Wong Kim Ark, the Court determined that the phrase ''subject to the jurisdiction'' was coextensive and synonymous with ''within the jurisdiction'' of any state. (see footnote 50) Thus, constitutional jurisdiction is an expansive concept which cannot be limited artificially by a seemingly simple narrowly constructive legislative interpretation. Our current laws reflect this understanding. Unlike diplomats from foreign countries, all immigrants whether here lawfully or not must follow the laws of the jurisdiction where they live. If this were not so, an undocumented immigrant could feel free to speed, steal, or even murder with no legal consequences. At the same time, when accused as criminals, persons who are undocumented are accorded constitutional protections.
More recently than the Wong Kim Ark decision, redefining ''jurisdiction'' to preclude conferral of constitutional rights has not survived Supreme Court scrutiny.(see footnote 51) In Plyler v. Doe,(see footnote 52) appellants argued that a state affords protection only to persons within its jurisdiction. They argued that persons who have entered the United States illegally are not ''within its jurisdiction,'' even if that person is within a state's boundaries and subject to its laws. The Court held that ''neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase 'within its jurisdiction.' ''(see footnote 53) Rather, the Court held that jurisdiction, as commonly understood, applies to all those within the boundaries of a State.(see footnote 54)
H.R. 7 Would Violate Children's and Men's Constitutional Right to Equal Protection
The Fourteenth Amendment goes beyond reaffirming our common law tradition of birthright citizenship by mandating that all persons similarly situated be treated alike. The Fourteenth Amendment states that, ''[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.'' It is well settled that the equal protection principle found in the Fourteenth Amendment as it applies to the States is implicit in the due process clause of the Fifth Amendment, as it applies to both the States and the Federal Government.(see footnote 55) H.R. 7 would violate equal protection principles by treating similarly situated children differently in attaining citizenship and by treating similarly situated parents differently in conferring citizenship to their children.
Similarly Situated Children
Discrimination against certain children based on parents' conduct violates equal protection principles.(see footnote 56) In Weber v. Aetna Casualty,(see footnote 57) Louisiana's workmen's compensation law afforded ''illegitimate'' children(see footnote 58) recovery only if surviving dependents did not exhaust the maximum benefits. The Court held that the Stab may not invidiously discriminate against this class, ''illegitimate'' children, by denying them substantial benefits accorded children generally. Furthermore, the Court refused to allow the State to discriminate against certain children, even when they could be used to deter or influence the behavior of other persons, such as parents.(see footnote 59) Disparate treatment of ''illegitimate'' children, not responsible for their birth, violates the general principle that requires legal burdens to bear some relationship to individual responsibility or wrongdoing, and violates the principle of equality.
Discrimination against undocumented children, like discrimination against ''illegitimate'' children, violates equal protection.(see footnote 60) In Plyler v. Doe,(see footnote 61) the Supreme Court upheld the right of children who are undocumented to equal access to public elementary and secondary education. The Court based its decision in part on the reasoning that undocumented children, like ''illegitimate'' children, have no control over their status by birth and should not be discriminated against on this basis. The Court stated that ''[l]egislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.''(see footnote 62) The children of undocumented entrants can affect neither their parents' conduct nor their own status.
Proponents of H.R. 7 state that they want to end illegal immigration, and allege that this legislation will achieve that goal by deterring undocumented immigrants from coming to the U.S. to have children. No evidence supports this conclusion. Virtually all credible studies conclude that the dominant causes of undocumented migration are the hope of obtaining employment or reunifying with family members.
Furthermore, if H.R. 7 becomes law, Latino and Asian children will be ostracized and subject to citizenship checks more frequently than other Americans solely because of their heritage. Such odious and unintended consequences will surely flow from enactment of this legislation. This is too high a cost to pay.
Similarly Situated Parents
In addition to treating similarly situated children differently, H.R. 7 treats similarly situated parents differently which would also violate our equal protection principles. Without logical foundation, a child born out of wedlock to a mother who is a citizen will be granted citizenship at birth, while a child born out of wedlock to a father who is a citizen but whose mother is undocumented will not be granted citizenship. A citizen mother will be able to pass on her U.S. citizenship to her child without any further action, but a citizen father will be prohibited from passing on his U.S. citizenship to his child unless he marries the mother, who may not want to marry him, for whatever reason. With H.R. 7, the Fifth Amendment's guarantee of equality no longer exists.
H.R. 7 Would Trample State Sovereignty Over Marriage
Under the Tenth Amendment to the Constitution, those powers not delegated to the Federal Government by the Constitution, nor prohibited by the Constitution to the States, are reserved to the States or to the people. H.R. 7 would determine citizenship at birth by parental citizenship or immigration status. Whether or not the father's status can be considered in determining the child's citizenship status depends on whether the father is married to the mother. Although many States recognize common law marriage, H.R. 7 would not recognize State law. The Federal Government would ignore State law and would consider the child's parents unmarried. Since the power to determine who can or cannot be married and what constitutes a marriage were not delegated to the Federal Government nor prohibited by the Constitution as a power to be given to the States, H.R. 7 would threaten longstanding State sovereignty rights.(see footnote 63)
STATEMENT REGARDING H.R. 1428 ............(omitted from this article because it is on another subject)
Appendix 3.-Prepared Statement of the American Council for Immigration Reform
Is Birth-Right Citizenship a Right? American law has long granted American citizenship to anyone born on American soil regardless of the status of the parents. Children of citizens and legal immigrants are citizens beyond a doubt. However, the automatic grant of citizenship to children born to illegal aliens or non-immigrants raises serious questions. We believe that H.R. 7, introduced by Rep. Brian Bilbray, answers these questions in a way that is both constitutional and necessary and support its passage.
The ability to distinguish between citizens and non-citizens is a fundamental attribute of sovereignty and of nationhood. In recognition of this, our Constitution, in Article I, Section 8, grants to Congress the power ''To establish a uniform rule of naturalization....''
Section I of the Fourteenth Amendment to our Constitution further states: ''All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States....'' This section overturned the Dred Scott decision and declared that former slaves and their progeny were American citizens. That the Congress and states intended much more than this is open to question. Just what did the framers of the amendment mean by ''subject to the jurisdictions thereof?''
Criminal Jurisdiction. All persons except accredited diplomats are subject to the criminal jurisdiction of the country in which they reside. This is a universal concept that has nothing to do with citizenship. Moreover, no jurisdiction has less to do with newborns-they do not commit criminal acts! It is safe to say that this was not the kind of jurisdiction the Congress and states had in mind when they ratified the Fourteenth Amendment.
Diplomatic Jurisdiction. It is accepted international custom, recognized in English and American common law, and confirmed by the Supreme Court, that children born to diplomats are citizens of the country their parents represent. No constitutional amendment was necessary to make that distinction. Nevertheless, the Vienna Convention on Diplomatic Relations (23 UST 3229) empowers the President to declare a diplomat persona non grata (Article 9).
Article 31 of that treaty, while establishing the diplomat's ''immunity from the criminal jurisdiction of the receiving State'', does not exempt the diplomat from that state's ''civil and administrative jurisdiction'' in the case of private ownership of real property, or private actions as an ''executor, administrator, heir or legatee,'' or in a ''professional or commercial activity.'' That's a lot of ''jurisdiction thereof'' but surely not the kind the framers of the 14th were thinking of.
American Indian Jurisdiction. How exceeding fine the Supreme Court can grind this issue is illustrated in an historic case brought by a Native American (Elk v. Wilkins 112 U.S. 94 (1884)). John Elk was born in a part of the 1803 Louisiana Purchase that came to be called Nebraska-born subject, one might say, to U.S. military jurisdiction. Nebraska, ''settled'' in 1823, accorded territorial status in 1854, and granted statehood in 1867, limited the vote to adult male citizens who were bona fide residents of the state for six months. Elk had renounced his tribal membership and by 1880 had lived in Omaha for over a year and claimed the right to vote in Nebraska since he was a U.S. citizen by birth based on the 14th Amendment.
However, in a precedent, powerfully argued and never overturned, the Court ruled that despite his birth in the geographical area of the U.S., Elk was born to parents who owed their allegiance to a tribe of ''Indians not taxed'' and could only become a U.S. citizen by means of naturalization. Naturalization, the Court further asserted, meant not only formal renunciation of his old allegiance but ''acceptance by the United States of that renunciation....'' In effect they ruled that the citizenship of a child at birth depended on the allegiances of the parents. Though Elk's parents had far greater claims than any illegal alien (try deporting an American Indian), their allegiance to their tribe meant that their child was not born a U.S. citizen.
Legal Immigrant Jurisdiction. A legal immigrant to the United States, unlike a born or naturalized citizen, is still ''subject to the jurisdiction'' of the country of his or her birth in that he or she can be drafted for military service there and is entitled to benefits and privileges there that might be denied to an American citizen there-the right to vote, own property, attend public schools, obtain welfare, etc. But what of his or her child horn in the U.S.?
Child of Legal Immigrant Jurisdiction. Wong Kim Ark was born in California in 1873 to legal Chinese immigrant parents. But following a visit to China, he was denied re-entry into the U.S. because, it was asserted, he was not a citizen. In a 62 decision (U.S. v. Wong Kim Ark 169 U.S. 649 (1898)), the Supreme Court declared him a U.S. citizen since he was ''born ... in the U.S. and subject to the jurisdiction thereof.'' They based this decision on English common law, past American practice, and, obviously, the 14th Amendment.
American common law is descended from English common law and derives many of its precedents from it. But this emulation is not a slavish one. The argument in Wong, peculiarly, tied Section I of the Fourteenth Amendment to that segment of English common law which was based on a subject's allegiance to a king! Such citizenship, based on the place of birth, was designed to impose obligations to the king upon a child-subject. The involuntary nature of this remnant of feudalism is profoundly at odds with the American tradition of voluntary memberships and would seem to be among those aspects of English common law that we would have jettisoned-as the British themselves did in 1983. Nevertheless, the Court's decision in this case appears just and appropriate.
Child of Illegal Immigrant Jurisdiction. But let us now turn to the question of whether the children of illegal immigrants and legal non-immigrants are entitled to citizenship. For the government has interpreted this decision to confer citizenship on the children of illegal immigrants and on the children of holders of non-immigrant visas (foreign students, temporary workers, tourists, etc.).
In 1868, when the 14th amendment was ratified (and in 1873, when Mr. Wong was born) there was hardly such a thing as an illegal immigrant and non-immigrants were not distinguished from legal immigrants but were probably limited to diplomats, journalists, and a few businessmen and adventurers. At that time, there were less than 40 million Americans, the frontier was still ''open,'' there was no border patrol, and welfare was mostly a limited province of the private sector. The framers of the Fourteenth Amendment surely did not imagine, let alone contemplate, a situation where hordes of aliens deliberately violate our borders and laws precisely in order to obtain public benefits that might accrue from the birth of a U.S.-citizen child.
By 1898, however, the concept of illegal immigrant was well understood and the Court was careful to note that Wong Kim Ark was a child of legal immigrants. They refer to the fact that the parents enjoyed a ''permanent domicile and residence'' (pp. 652, 653, 705), that the parents were ''domiciled residents'' (p. 651), and that the parents were ''domiciled in the U.S.'' (p. 696). The dictionary meaning of the word ''domicile'' is ''permanent legal residence.'' One can have many residences but only one domicile. Is it conceivable that an illegal immigrant here could have a permanent legal residence here?
With 5,000 miles of land borders and many more miles of coastline, abundant immigrant and non-immigrant visas, modern communications and air travel, a policy designating children of illegal aliens and legal non-immigrants as citizens provides a loophole that endangers our very sovereignty. In 1992, an estimated 96,000 babies were born to illegal alien women in California at an initial cost to Californians of $230 million. As things stand now, giving birth to a U.S. citizen only takes a moment or two on any patch of U.S. soil-a future generation could wake up to discover that every parent on Earth had managed to find a way to give birth in the U.S.
The plain meaning of the Constitution can be extended to related situations not contemplated by the framers-the Fourth Amendment protection against unreasonable search and seizure, for example, has been extended to cover wiretaps. But can the meaning of an amendment be extended without limit? Did the framers of the 14th Amendment really mean to say: ''Alien! Break our laws, and we will reward you?'' Did they intend to threaten our sovereignty? Did they regard the Constitution as merely a cleverly-drawn contract for self-destruction? Surely not!
This discussion occurs against the background of the Citizenship USA scandals, the Mexican government's imposition of dual nationality upon their former citizens, full dual citizenship offered by other governments and a new awareness among still other countries that have never recognized the right of their citizens to voluntarily give up their citizenship. These have heightened concerns over the very meaning of American citizenship. They have magnified the importance of defining just what is an American citizen.
What did the framers of the Fourteenth Amendment mean by ''subject to the jurisdiction thereof?'' We believe if they came back today, they would point to H.R. 7 as an appropriate legislated definition. We therefore urge its adoption.
Now comes the hard part! There will have to be some procedures for confirming the status of newborns. Hospital workers and separatists may object to this-they care for people, not nations. The U.S. government might offer to pay the hospital bills for the delivery and care of illegal alien babies-the feds, after all, are responsible for the problem and many cash-strapped cities may respond to this. Indeed, there will have to be provision for the care of illegal alien babies that are born deformed or with serious genetic or other disorders.
We will have to urge parents-to-be to establish their status prior to hospitalization. The INS may have to assist in the identification process. A dual state and federal Birth Certification and Social Security Number process is another possibility. For babies found to be ineligible for citizen status, a special birth certificate might include a nationality block in which would be entered the nationality of the mother and/or the father. If the parents were found to be stateless, the child would be entitled to the same status we then assigned to the parents. In any case, we should study the methods used by other countries.
[Oh? So we can solve the "stateless" problem by arbitrarily assigning citizenship in another country? What if the country to which we assign citizenship doesn't want to grant citizenship rights to our baby?]
Constitutionality. It is argued that only a constitutional amendment is sufficient to change current practice. Obviously, we think legislation will be sufficient. Moreover, the constitutional amendment is unlikely to pass-the American people just don't know the issue. Should legislation be overturned as unconstitutional, however, the publicity such a case would generate might make the constitutional approach feasible. Legislation is the obvious place to start.
There will be protests by the ''open border'' set. There will be cries of ''1800 Big Mommy'' and nonsense claims that having a child will now require government approval. But as Chief Justice Melville Fuller noted in his dissenting opinion in Wong: ''[American citizenship] is a precious heritage, as well as an inestimable acquisition.'' Millions have died or been maimed to defend the values we hold dear and the lives we live as U.S. citizens. Awarding American citizenship automatically to the children of aliens who break our laws or are just passing through, cheapens it beyond all recognition.
Appendix 4.-Prepared Statement by Germaine Q. Wong, San Francisco Director of Elections, Department of Elections, City and County of San Francisco, CA..........
CITIZENSHIP REFORM ACT OF 1997; AND VOTER ELIGIBILITY VERIFICATION ACT
IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
CITIZENSHIP REFORM ACT OF 1997
VOTER ELIGIBILITY VERIFICATION ACT
JUNE 25, 1997
Serial No. 23
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
Page 192 PREV PAGE TOP OF DOC
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, California
SONNY BONO, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
ED BRYANT, Tennessee
Page 194 PREV PAGE TOP OF DOC
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
June 25, 1997
TEXTS OF BILLS
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
Bhattacharjie, Gwat, Santa Barbara, CA
Bilbray, Hon. Brian P., a Representative in Congress from the State of California
Cain, Becky, president, League of Women Voters of the United States
Crank, Sandy, Associate Commissioner for Policy and Planning, Social Security Administration
Erler, Edward J., professor of political science, California State University at San Bernardino
Horn, Hon. Stephen, a Representative in Congress from the State of California
Johnsen, Dawn E., Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice
LePore, Theresa, supervisor of elections, West Palm Beach County, FL
McAlpin, K.C., deputy director and chief operating officer, Federation for American Immigration Reform
Ogden, David W., Associate Deputy Attorney General, Department of Jus-tice
Peters, Philip, senior fellow, Alexis de Tocqueville Institution
Slater, Pam, supervisor, San Diego County Board of Supervisors
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bhattacharjie, Gwat, Santa Barbara, CA: Prepared statement
Bilbray, Hon. Brian P., a Representative in Congress from the State of California: Prepared statement
Cain, Becky, president, League of Women Voters of the United States: Prepared statement
Crank, Sandy, Associate Commissioner for Policy and Planning, Social Security Administration: Prepared statement
Erler, Edward J., professor of political science, California State University at San Bernardino: Prepared statement
Horn, Hon. Stephen, a Representative in Congress from the State of California: Prepared statement
Johnsen, Dawn E., Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice:
Information concerning any case where specifically an illegal alien has been tried for treason
Kemp, Jack, cochairman, Alexis de Tocqueville Institution: Prepared statement
LePore, Theresa, supervisor of elections, West Palm Beach County, FL: Prepared statement
Lofgren, Hon. Zoe, a Representative in Congress from the State of California: Prepared statement
Ogden, David W., Associate Deputy Attorney General, Department of Justice: Prepared statement
Peters, Philip, senior fellow, Alexis de Tocqueville Institute: Prepared statement
Slater, Pam, supervisor, San Diego County Board of Supervisors: Prepared statement
Stein, Dan, executive director, Federation for American Immigration Reform: Prepared statement
Appendix 1.-Letter dated June 24, 1997, from James T. Beall, Jr., chair, Board of Supervisors, County of Santa Clara, CA
Appendix 2.-Prepared statement of the Mexican American Legal Defense and Educational Fund
Appendix 3.-Prepared statement of the American Council for Immigration Reform
Appendix 4.-Prepared statement of Germaine Q. Wong., San Francisco director of elections, Department of Elections, City and County of San Francisco, CA
(Footnote 1 return)
Act of Apr. 9, 1866, ch. 31, 1, 14 Stat. 27.
(Footnote 2 return)
United States v. Rhodes, 27 F. Cas. 785, 789 (C.C.D. Ky. 1866) (No. 16,151) (Swayne, J., on circuit) (internal quotation marks and citation omitted).
(Footnote 3 return)
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
(Footnote 4 return)
The principal alternative system, jus sanguinis, used in most civil law European countries, grants citizenship by descent or blood-that is, according to the citizenship of one's parents. This system obviously could not have operated in the United States at its inception, where, except for American Indians, the inhabitants were citizens of other countries.
(Footnote 5 return)
169 U.S. 649 (1898).
(Footnote 6 return)
Citizenship, 10 Op. Att'y Gen. 382, 394 (1862).
(Footnote 7 return)
Slaves, shamefully, not being considered persons at all for many legal purposes, were ignored by the common law analysis.
(Footnote 8 return)
E.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 119 (1804) (presuming that all persons born in the United States were citizens thereof); McCreery v. Somerville, 22 U.S. (9 Wheat.) 354 (1824) (in determining title to land in Maryland, Court assumed that children born in the state of an alien were native-born citizens of the United States); Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. 1844) (in holding that child born in New York during temporary stay by alien parents was a citizen of United States, Court, after thorough examination of law, concluded that it entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen); Letter from Mr. Marcy, Secretary of State to Mr. Mason, United States Minister to France (June 6, 1854) in 2 Francis Wharton, Digest of the International Law of the United States 394 (2d ed. 1887) (''In reply to the inquiry which is made by you ... whether 'the children of foreign parents born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father's country, are entitled to protection as citizens of the United States,' I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.''); Citizenship of Children Born in the United States of Alien Parents, 10 Op. Att'y Gen. 328 (1862) (child born in the United States of alien parents who have never been naturalized is, by fact of birth, a native-born citizen of the United States); Citizenship, 10 Op. Att'y Gen. 382 (1862) (reaffirming general principle of citizenship by birth in the United States and rejecting the existence under law of a class of persons intermediate between citizens and aliens); Frederick Van Dyne, Citizenship of the United States 67 (1904) (''It is beyond doubt that, before the enactment of the civil rights act of 1866 ... or the adoption of the constitutional amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.'' (citations omitted)).
(Footnote 9 return)
United States v. Wong Kim Ark, 169 U.S. 649 (1898); 4 Charles Gordon et al., Immigration Law and Procedure 92.03 (rev. ed. 1997). See footnote 12 for a discussion of the status of tribal Indians.
(Footnote 10 return)
Cong. Globe, 39th Cong., 1st Sess. 1115 (1866); Id. at 1117 (quoting William Rawle, A View of the Constitution of the United States of America 86 (2d ed. 1829)).
(Footnote 11 return)
Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). In describing the discrete classes of persons excluded by the common law, Senator Howard noted that the citizenship clause would ''not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.'' Id. This statement has erroneously been taken by some to indicate that Senator Howard intended to exclude all children born to ''foreigners'' and ''aliens.'' See Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: Joint Hearings on H.R. 705 et al. Before the Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 115, 116 (1995) (prepared statement of Edward J. Erler, Professor of Political Science, California State University). This serious misreading of the transcription of Senator Howard's oral statement is squarely contradicted by the remainder of the debates and the Supreme Court's holding in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Without a doubt, Senator Howard was referring to the traditional common law exception of persons who are both foreigners or aliens and belong to the families of accredited ambassadors or foreign ministers.
(Footnote 12 return)
See Cong. Globe, 39th Cong., 1st Sess. 289091 (1866). A great deal of attention was spent on how (not whether) to exclude unassimilated or tribal Indians. Ultimately, any reference to ''excluding Indians not taxed''-the phrase used in the Civil Rights Act of 1866-was omitted as unnecessary, as they were not deemed to be ''subject to the jurisdiction'' of the United States because of the unique status of Indian tribes within the United States. In Elk v. Wilkins, 112 U.S. 94, 99 (1884), the Court construed the ''subject to the jurisdiction'' clause in a case brought by an Indian claiming citizenship who was born a member of a tribe, but who had later taken up residence among the non-Indian citizens of the state. The Court held he was not a United States citizen, because he was not ''subject to the jurisdiction'' of the United States at the time of his birth. In construing the phrase ''subject to the jurisdiction'' the Court noted that the Indian tribes, although not, strictly speaking, foreign nations, were alien nations with distinct political communities with which the United States entered into treaties: Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ''born in the United States and subject to the jurisdiction thereof,'' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. Id. at 102. See also David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. Rev. 759, 83241 (1991) (reviewing the legislative history of the citizenship clause to conclude that ''subject to the jurisdiction'' was intended to exclude tribal Indians with separate laws and governments of their own, and thus were, ''in modern international law parlance, a separate people''). Wilkins cannot be interpreted to mean that children born in the United States of aliens are not ''subject to the jurisdiction'' of the United States because their parents may owe some allegiance to their own country of birth. Indeed, were the contrary to be true, dual nationality would be prohibited. Legal and illegal aliens alike simply enjoy no jurisdictional immunities from any laws of the United States as long as they are not part of the diplomatic personnel of a foreign country, and neither do their children. The denial of citizenship to tribal Indians was later corrected by statute. See Act of June 2, 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. 1401(b) (1994)); see generally, Felix S. Cohen, Handbook of Federal Indian Law 640 & n. 7 (1982 ed.).
(Footnote 13 return)
169 U.S. 649 (1898).
(Footnote 14 return)
See Rogers v. Bellei, 401 U.S. 815, 82930 (1971) (citizenship clause is '' 'declaratory of existing rights, and affirmative of existing law,' so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned''); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 n.10 (1963) (confirming that the citizenship clause ''is to be interpreted in light of pre-existing common-law principles governing citizenship''); Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982) (relying on Wong Kim Ark's predominantly geographic interpretation of the ''jurisdiction'' clause of the Fourteenth Amendment in holding Fourteenth Amendment's Equal Protection Clause applicable to undocumented aliens, and noting that ''no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful''); INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (in habeas proceeding brought by deportable aliens, Court noted that respondent had given birth to a child, ''who, born in the United States, was a citizen of this country''); Morrison v. California, 291 U.S. 82, 85 (1933) (noting that although persons of Japanese descent were not eligible to become citizens through naturalization, a person of Japanese descent is a citizen of the United States if he was born within the United States, citing Wong Kim Ark); 4 Charles Gordon et al., Immigration Law and Procedure 92.03[e] (rev. ed. 1997) (noting that any uncertainty regarding the applicability of the jus soli rule to children born in this country was ''finally resolved by the Fourteenth Amendment and the Supreme Court's decision in U.S. v. Wong Kim Ark. There is now no doubt that the constitutional rule of universal citizenship for all persons born in the United States is unaffected by the status of their parents, except in minimal situations. Thus American citizenship is acquired by children born in the United States, even though their parents were always aliens, and even if the parents were themselves ineligible to become citizens of the United States. Nor has the acquisition of citizenship been affected by the circumstance that the child's alien parents were in the United States temporarily or even illegally at the time the child was born.'' (footnotes omitted)).
(Footnote 15 return)
Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (1985).
(Footnote 16 return)
For critiques of Schuck and Smith's work, see, e.g., Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. Rev. 54 (1997); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 16587 (1996); Gerald L. Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485 (1987) (book review); David Howarth, Citizenship Without Consent, 46 Cambridge L.J. 169, 170 (1987) (book review); Arthur C. Helton, Citizenship Without Consent, 19 N.Y.U. J. Int'l L. & Poll 221, 226 (1986) (book review); David A. Martin, Membership and Consent: Abstract or Organic?, 11 Yale J. Int'l Law 278 (1985) (book review).
(Footnote 17 return)
169 U.S. at 675.
(Footnote 18 return)
18 387 U.S. 253, 263 (1967).
(Footnote 19 return)
The deep historical roots of birthright citizenship, discussed throughout this testimony, would also advise against adopting the principles contained in H.R. 7 in an amendment to the Constitution. Because the Subcommittee is not considering such an amendment, we do not repeat here the arguments presented in our submission in December, 1995, to this Subcommittee and to the Subcommittee on the Constitution of the United States House of Representatives cautioning against such an amendment. Nor do we address the substantial administrative burden that would result from requiring proof of parentage and of the citizenship or immigration status of parents for every person claiming citizenship by right of birth.
(Footnote 20 return)
Congressional Globe, 39th Cong., 1st Sess., 2890. See Slaughter-House Cases, 83 U.S. 36, 73 (1873) where Justice Samuel Miller, writing for the majority, noted that ''[t]he phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign states born within the United States.''
(Footnote 21 return)
(Footnote 22 return)
Ibid., 39th Cong., 1st Sess., 2893 (1866).
(Footnote 23 return)
Ibid., at 2895.
(Footnote 24 return)
Senate Report No. 268, 41st Cong., 3rd Sess (1870), at 10.
(Footnote 25 return)
Elk v. Wilkins, 112 U.S. 94, at 102.
(Footnote 26 return)
Ibid. at 99.
(Footnote 27 return)
Ibid. at 101.
(Footnote 28 return)
Ibid. at 103.
(Footnote 29 return)
Ibid. at 104.
(Footnote 30 return)
Documents of United States Indian Policy, 2nd ed. revised, Frances Paul Prucha, ed. (Lincoln: University of Nebraska Press, 1990), at 218.
(Footnote 31 return)
Congressional Globe, 40th Cong., 2nd Sess. (1868), at 4211.
(Footnote 32 return)
Ibid., at 868 (Rep. Woodward, Penn.); Rep. Bailey of New York described birth-right citizenship as ''the slavish feudal doctrine of perpetual allegiance'' at Id., 967. Similar arguments were pervasive in the debate.
(Footnote 33 return)
Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979 [Facsimile of the 1st ed. of 1765]), Vol. I, pp. 3578.
(Footnote 34 return)
Papers of James Madison, Vol. 17:326.
(Footnote 35 return)
Congressional Globe, 40th Cong. 2nd Sess. (1868), 969.
(Footnote 36 return)
(Footnote 37 return)
United States v. Wong Kim Ark, 169 U.S. 649, 708 (1898).
(Footnote 38 return)
Ibid., at 71011.
(Footnote 39 return)
(Footnote 40 return)
National Voter Registration Act.
(Footnote 41 return)
Immigration and Nationality Act, as amended, 301(a); 8 U.S.C.A. 1401(a) (West Supp. 1997).
(Footnote 42 return)
Jus soli is the legal principle that bases citizenship on place of birth. In contrast, jus sanguinis is the legal principle that bases citizenship on the nationality of one's parents. Black's Law Dictionary 775 (5th ed. 1979).
(Footnote 43 return)
United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898).
(Footnote 44 return)
(Footnote 45 return)
In Elk v. Wilkins, 112 U.S. 94 (1884), an Indian who was born in an Indian tribe but was living outside the tribe asserted a claim to U.S. citizenship. The Supreme Court held that the Indian was not a citizen because he was not ''subject to the jurisdiction'' of the United States when he was born. Id. at 99. The Court reached this decision based on the following reasoning: Indians born within the territorial limits of the United States, member of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ''born in the United States and subject to the jurisdiction thereof,'' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. Id. at 102. The denial of citizenship to tribal Indians was changed by Congress through legislation. See Act of June 2, 1924, ch. 233, 43 Stat. 253 (current law at 8 U.S.C.A 1401(b) (West Supp. 1997)).
(Footnote 46 return)
Wong Kim Ark, 169 U.S. at 649.
(Footnote 47 return)
Ch. 126, 22 Stat. 58 (1882); Ch. 220, 23 Stat. 115 (1884); Ch. 1015, 25 Stat. 476 (1888); Ch. 1064, 25 Stat. 504 (1888); Ch. 60, 27 Stat. 25 (1892); Ch. 641, 32 Stat. 176 (1902); and Ch. 1630, 33 Stat. 428 (1904).
(Footnote 48 return)
Wong Kim Ark, 169 U.S. at 703.
(Footnote 49 return)
Id. at 693.
(Footnote 50 return)
Id. at 687; for the exceptions to the board rule see supara text accompanying note 8.
(Footnote 51 return)
Plyler v. Doe, 457 U.S. 202 (1982).
(Footnote 52 return)
(Footnote 53 return)
Id. at 212.
(Footnote 54 return)
(Footnote 55 return)
See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954).
(Footnote 56 return)
Weber v. Aetna Casualty, 406 U.S. 164 (1972).
(Footnote 57 return)
(Footnote 58 return)
''Illegitimate'' children are defined by legal terms as children born to parents who are alive but not married. Black's Law Dictionary 673 (5th ed. 1979).
(Footnote 59 return)
Weber, 406 U.S. at 173; see also Wallach v. Van Riswick, 92 U.S. 202, 210 (1876) (protecting children of persons convicted of treason from loss of inheritance because of their parents' conduct).
(Footnote 60 return)
Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding Fourteenth Amendment applies to any person within the jurisdiction of the U.S. without regard to nationality).
(Footnote 61 return)
457 U.S. 202 (1982).
(Footnote 62 return)
Id. at 220.
(Footnote 63 return)
While the power to determine who can marry is not delegated to the Federal Government and therefore falls to the States, the States must still ensure that State marriage laws do not fall afoul of other prohibitions contained within the Constitution. For example, in Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court found unconstitutional a State marriage law which prohibited miscegenation since the law was obviously ''designed to maintain White Supremacy.'' Id. at 11.
(Footnote 64 return)
Reynolds v. Sims, 377 U.S. 533, 555 (1964).
(Footnote 65 return)
John Warren McGarry, Federal Election Commission, The Impact of The National Voter Registration Act of 1993 on the Administration of Elections for Federal Office 19951996 4 (1997).
(Footnote 66 return)
See Greidinger v. Davis, No. 921571, 1993 U.S. App. LEXIS 5774 at 1 (4th Cir. Mar. 22, 1993).
This web site is part of Uncle Ed.'s search for truth. God didn't make any man able to find the truth by himself. Proverbs 15:22 says only in a "multitude of counsellors" are purposes established. And counsel can come from anybody: 2 Chronicles 35:20-24 says God can speak even through your generation's representative of Antichrist! (Isaiah 30 for perspective.)
So if you see errors here, and you don't warn poor Uncle Ed.,, their continued presence here will be your fault! (Ezekiel 3:18-20) (If you don't want your email address posted when we post your comments or criticism, SAY SO!)
Join our FORUM on any article posted here. The discussion board set up at http://x.saltshaker.us/forums is designed for you to respond to any article on this website. (Or start a discussion on your own topic.) To respond to any article on this website, just copy enough of the beginning of the article to let everybody know to what you are responding, along with the url of the and then have at it.
If your comment would be appropriate inserted in one of my articles, email your comment to me, with a little of the text on either side of where you think it should be inserted, and I'll try to post it there, along with any response I may have (to which you are invited to respond further.)