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PIERCE'S IMMIGRATION LAW E-NEWSLETTER SEPTEMBER 2010
 Inside this month's issue: Books on Immigration: The Amendment that Refused to Die: Equality and Justice Deferred: A History of the 14th Amendment by Howard N. Meyer
IMMIGRATION NEWS
 Can Congress Deny Birthright Citizenship to Children of the Undocumented? Does Changing Citizenship Policy Require Changing the Fourteenth Amendment?
Is “birthright citizenship” – the policy of granting US citizenship to every child born on national soil – really enshrined in the US Constitution? Some experts believe it isn’t. Congress, they say, could regulate who qualifies for birthright citizenship via legislation, within limits. Lawmakers might deny it to children born in the US to illegal immigrants, for example.
This could be an important legal distinction. Circumscribing birthright citizenship with a bill would be very difficult, particularly while President Obama remains in office. But doing the same thing via the direct route of amending the Constitution would be virtually impossible. “We do not need to amend the Constitution to end birthright citizenship,” said Rep. Lamar Smith (R) of Texas in a statement issued Tuesday, August 27, 2010.
Birthright citizenship is a hot topic in Washington nowadays because some congressional Republicans have become increasingly vocal about a desire to deny such status to the children of parents who are residing in the US illegally. The GOP leaders of both the House and Senate have said they favor holding hearings on the issue, at the least.
Many legal scholars believe that changing the policy would require changing the 14th Amendment to the Constitution, on which birthright citizenship is based. But “many” legal scholars is not the same thing as “all.” Section 1 of the 14th Amendment begins this way: “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 key phrase here is “subject to the jurisdiction thereof,” say some experts. Illegal immigrants are not subject to US jurisdiction, in the sense that they cannot be drafted into the US military or tried for treason against the US, said John Eastman, a professor at the Chapman University School of Law, in a media conference call Monday. Their children would share that status, via citizenship in their parents’ nation or nations of birth – and so would not be eligible for a US passport, even if born on US soil, according to Dr. Eastman.
Furthermore, federal courts have upheld the right of Congress to regulate naturalization policies over and above the basic constitutional guarantee, according to Eastman. Taken together, he says, all this means lawmakers, if they choose, could deny birthright citizenship to the children of parents here illegally.
“The 14th Amendment is a floor, but how far above that floor we go is a matter of basic policy judgment that our Constitution assigns exclusively to the Congress of the United States,” said Eastman on Monday, August 16, 2010.
Perhaps the defining Supreme Court ruling in this area is US v. Wong Kim Ark, an 1898 case in which justices upheld the US citizenship of a child born on US soil to Chinese immigrant parents. The parents were in the US legally, however.
“The courts apparently have never ruled on the specific [issue] of whether the native-born child of illegal aliens as opposed to the child of lawfully present aliens may be a US citizen,” concludes a 2005 Congressional Research Service report on birthright citizenship.
Defenders of the current US interpretation of birthright citizenship say that a century of legal precedents supports their view that it is defined by the Constitution itself and is beyond the reach of congressional reinterpretation. The wording of the 14th Amendment means what it says, they say. The “subject to the jurisdiction” phrase today excludes the children of diplomats, who are immune from most US civil and criminal laws by treaty. “Those who want to read it narrowly ... are simply wrong,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, in a recent conference call.
To learn more about the history of the 14th amendement see our monthly feature Books on Immigration.
article by Peter Grier
Christian Science Monitor
August 11, 2010
 U.S. Supreme Court to Review Federal Appellate Court Decision that Upheld Arizona's Revocation of Business Licenses of Employers Knowingly Hiring the Undocumented
The U.S. Supreme Court has agreed to review a federal appellate court decision that upheld an Arizona law providing for revocation of business licenses of employers that knowingly hire illegal immigrants (Chamber of Commerce of the U.S. of Am. v. Candelaria, No. 09-115).
The 9th U.S. Circuit Court of Appeals unanimously ruled in September 2008 that the Legal Arizona Workers Act was not pre-empted by federal immigration law. In their petition for Supreme Court review, the plaintiffs-civil rights groups and a business trade group coalition-argued that the case is of "exceptional national importance" and said that only the U.S. Supreme Court can adequately address the growing split in legal authority on the issue.
Arizona's attorney general and solicitor general countered that the lower courts properly decided the case and that the Arizona law is consistent with federal law. The acting solicitor general of the United States filed a brief urging the high court to strike down the law on pre-emption grounds.
The law, which was effective January 1, 2008, prohibits Arizona employers from intentionally or knowing employing unauthorized aliens. The law grants jurisdiction to the superior courts of Arizona to hear complaints brought by country attorneys to suspend or revoke the business licenses of employers that violate the law. The act makes participation in the federal E-Verify program, administered by the U.S. Department of Homeland Security, mandatory for all employers, although it provides no penalty for violating this requirement.
Argument in the case will take place in the court term that begins in October.
Books on Immigration:
 The Amendment that Refused to Die: Equality and Justice Deferred
by Howard N. Meyer
Continuing with the theme of birthright citizenship and the 14th Amendment, we are featuring a book on the history of the amendment.
Now in an updated and revised edition, Howard Meyer's The Amendment That Refused to Die: Equality And Justice Deferred is the documented history of the Fourteenth Amendment to the United States Constitution. The 14th Amendment guarantees equality and freedom for U.S. citizens, and Meyer traces the amendment's origins in the aftermath of the Civil war; its near repudiation; violent reactions against it; and its revival in the 20th century. Very highly recommended for American political science students and Constitutional studies reading lists, The Amendment That Refused to Die surveys current attacks against the amendment in ways that threaten 14th Amendment based affirmative action, desegregation, voting rights, abortion rights, gay rights, and protection from oppressive measures of the State legislation.
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