I am always, how do you say, exercised about media bias. And the presidential campaign season and the issue of immigration make it like shooting fish in a barrel to spot it. Let’s take last summer’s kerfuffle over “anchor babies” for example. The media tells us that all children born here with non-citizen parents are anchor babies, and further that it’s a pejorative expression used solely by conservative Americans (because don’t you know all conservatives are prejudiced and ignorant). Sigh. It’s a term used by American consular officers—the people who issue visas to immigrants and visitors—from the U.S. Department of State. And it’s used whenever an officer suspects that a mother entered the United States with the express intent of giving birth, does so, and then immediately returns home with the child and his U.S. birth certificate all for the express purpose of immigrating the whole family two decades later. Still not unlawful (really), but it’s a term describing a subset of children born to foreign nationals in the United States, not a blanket term for any child born to someone visiting or residing without lawful status within the country.
It is true though, that consular officers are frustrated by citizenship earned in this manner. It does seem wrong doesn’t it? Maybe ethically it’s a shady practice, but it’s perfectly lawful per the Immigration and Naturalization Act (INA – the law that governs immigration). There is no law barring a woman from obtaining a tourist visa or asking for permission to enter the U.S. (two different things involving two different agencies—who says we don’t suffer from too much government?) with the intent of giving birth since giving birth in the U.S. isn’t unlawful. Birth tourism? The INA says nothing about it. Using Medicaid or other forms of prenatal care at the state’s cost equally does not trigger the public charge section of the INA.
When this hit the news, was your Facebook feed full of people calling for the 14th Amendment to be revoked to end the practice of jus soli (right of soil – citizenship obtained via birth within the United States)? Please tell understand that if they persist in that nonsense, they are actually also advocating damaging the citizenship rights of blacks and women. Or that there is case law that uses the 14th Amendment to support the privacy interpretations of the 1st, 2nd, 3rd, 4th and 9th Amendments. So really? You just want to toss that out the window? See the above paragraph. If you have issues with immigration, it’s the INA you want to attack, not our Constitution—the very thing that doesn’t just govern us through our consent, but also is what defines America and makes us the envy of the world.
As for transmitting citizenship, take a look at Germany or most Persian Gulf countries before attacking jus soli. The jus sanguinis (right of blood – citizenship is obtained via the parents’ citizenship status) model that sounds so reasonable leads to the very problem the 14th Amendment is meant to address. The Gulf countries are full of “guest workers” who’ve lived their entire life in, say Dubai, and had children there, but none are citizens and if the parents lose their job, they must return to their own country complete with their children who don’t speak the language of a country they’ve never seen. Sound familiar?
Jus sanguinis in Germany created an entire population of Turks who are German in name and language, but not in terms of belonging, and until recently, not in terms of citizenship either. What happens when you make an entire group second class members of society? Please tell me you know the answer to that.
Interestingly, jus sanguinis in Germany has also fostered birth tourism via a falsified birth certificate. Turkish-German women will return to Turkey to bring young children with fake birth certificates saying it’s their child and thus obtaining German citizenship for that child. But isn’t revoking the practice of jus soli supposed to solve America’s immigration problem? You mean all forms of citizenship transmission create issues for the host country? Who would have thought?!
It turns out we have a falsified birth certificate problem too. Along the United States – Mexican border, there are birthing clinics and obstetricians who will provide real state birth certificates with fake information to parents who can pay. I suspect that’s what’s behind reports of the Texas Vital Statistics Unit refusing to issue birth certificates to children whose parents do not have the required forms of identification. Texas knows it has a high fraud rate problem . The news reports imply racism, prejudice, and so on (hey thanks media bias!) since this is affecting mostly those in the U.S. without lawful status who are from Mexico. While I don’t mean to imply that making a child stateless is a good thing, the falsified Texas birth certificate is a real problem. And it’s an extremely sad problem when a child who believed his entire life that he was born in El Paso, but instead finds at age 25 that his parents lied to him, as his petition to bring in his wife into the U.S. is denied, and the State Department revokes his U.S. passport.
Whatever your view of immigration, those present without lawful status and citizenship transmission, when it comes to those issues being debated vociferously and righteously, it bears considering all that you aren’t being told if the basis of your opinion is drawn solely from the media. Otherwise, we risk being incentivized to damage our Constitution and make ridiculous laws that could have consequences as punitive as the problems we’re trying to avoid now.