The Next Step For Arizona's Nativists: Ignore 14th Amendment, Deny Children Of Illegal Immigrants Birthright Citizenship

[Cross-posted at Crooks and Liars.]

It turns out that the Arizona immigration-bashing nativists who enacted SB1070, led by State Sen. Russell Pearce, were just getting started in their campaign to drive out Latino immigrants:

E-mails to and from Ariz.state Sen. Russell Pearce reveal the immigration enforcement debate may not stop with SB 1070, the controversial immigration law.

Pearce, R-Mesa, the author of Arizona’s immigration law, has been writing to some of his constituents about what he plans to accomplish next.

In e-mails obtained by CBS 5 News, Pearce said he intends to push for a bill that would enable Arizona to no longer grant citizenship to the children of illegal immigrants born on U.S. soil.

Pearce wrote in one e-mail: "I also intend to push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen."

CBS 5 Investigates looked through hundreds of e-mails Pearce had sent to constituents and some of their replies. The e-mails varied from praise to criticism and outlined Pearce’s future plans. Most were about SB 1070, his immigration law.

E-mails from the law’s supporters outnumbered those from critics by seven to one.

One supporter wrote, "I think it is about time we take our state and country back from the Mexicans."

So Pearce went on Bill O'Reilly's show last night to try to explain his thinking. According to Pearce, the 14th Amendment doesn't actually say what it says in in plain language:

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.

O'Reilly, of course, is not much help: He counters Pearce by observing that this is "federal law" -- though that is hardly the half of it, since this particular principle, of birthright citizenship, is embedded in the Constitution and is indeed a proud part of America's heritage as a nation of immigrants.

Pearce wants to claim that this only refers to people with "legal domicile" in the U.S. -- even though the words appear nowhere in the Constitution.

He complains that the concept of "illegal immigration" hadn't been conceived when the 14th Amendment was written -- which is true enough, but irrelevant to whether it remains in force. Indeed, a much stronger argument can be made that the nakedly racist/eugenicist/Nativist Immigration Act of 1924 -- which first created "illegal immigration" -- was grossly unconstitutional because it clearly violated the 14th Amendment.

Moreover, it's irrelevant because the law has always been interpreted to mean that, when a newborn is accorded automatic birthright citizenship based on birth on American soil, its status is generally unaffected by the legal status or citizenship of that individual's mother or father. This was true both before and after 1924.

Indeed, Pearce then rambles over to the 1898 Supreme Court ruling United_States v. Wong Kim Ark and tries to claim that it, too, doesn't actually say what it clearly says -- namely, that

The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions (plus a third condition, namely, that Indian tribes were not considered subject to U.S. jurisdiction) - and that since none of these conditions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens (and were, in fact, ineligible ever to become U.S. citizens because of the Chinese Exclusion Act).

Pearce wraps up by claiming we'll never solve the problem of illegal immigration if we don't cut off the great big incentive of having "anchor babies" here.

But this is a sick joke. Surveys of undocumented workers have made indelibly clear that they don't come here to have "anchor babies," or to get our free health care, or any of the other fantasies harbored by nativists: they come here for jobs.

Moreover, there's no serious benefit to be had from having your child be born a citizen -- because under American law, you can be deported anyway, and in fact thousands of parents of American birthright-citizen children are deported every year: 100,000 of them over 10 years, to be precise.

There is an exemption available: After the immigrant parent has been present for no less than ten years, he or she may apply for Cancellation of Removal if he/she can prove ten years of good moral character and establish that deportation would create an exceptional hardship to her citizen child. There is an annual cap of 4,000 on the number of illegal immigrants who can be granted such relief, and for the past several years the government has not even reached that cap.

Pearce is creating a boogeyman that doesn't exist -- just as he did in waving about drug-gang crimes as an "immigration" problem in pushing SB1070.

And this boogeyman is scary brown babies. That takes a special kind of chutzpah.

Stephen Lemons at Phoenix New Times has more.

And Immigration Policy Center has a good rundown on the myths and facts about birthright citizenship. [PDF file]