Archive for the ‘14th Amendment’ Category.

Why All the Worry Over Senator Sessions as Attorney General?

[et_pb_section admin_label=”section”] [et_pb_row admin_label=”row”] [et_pb_column type=”4_4″] [et_pb_text admin_label=”Text”] The veterans among us know all too well the vast power that the Attorney General of the United States (AG) has in immigration matters, but for those who are new to the practice of immigration law, or just interested members of the press or public, here is a primer on the power of this office only as it relates to immigration:

(1)   The AG has the power to remake the Board of Immigration Appeals (BIA). In 2002, Attorney General John Ashcroft decided to “streamline” BIA review of immigration decisions and he was able to do so without any enabling legislation because the BIA is a creature of regulations promulgated by the Attorney General. Before 2002, most immigration appeals were reviewed by three-judge panels which almost always issued written opinions. But Ashcroft changed that to require single-member review of most cases. He also cut the number of BIA members from 23 to 11and dismissed the more “pro-immigrant” members. Since that time, the board has grown to 17, but there is nothing to prevent our new AG from remaking the entire Board in whatever form he wishes.

Continue reading ‘Why All the Worry Over Senator Sessions as Attorney General?’ »

Ghosts in History?

shutterstock_9108796May 31st marked the last day of Asian Pacific American Heritage Month. To celebrate, the Pan Asian Lawyers of San Diego recruited other local bar associations for some lawyerly fun – reenacting Chy Lung v. Freeman, 92 U.S. 275 (1875), otherwise known as the “22 Lewd Chinese Women” case. The Asian American Bar Association of New York had fashioned a script from historical transcripts, briefs and their own research. It struck me that this particular case and these 22 women did so much for the rights of immigrants, but except for a bunch of lawyers keeping that knowledge alive, the impact seemed lost to the ghosts of history. I especially feel that we aren’t learning from history in light of recent hateful rhetoric aimed at particular religions and cultures by some in the public sphere, and the ordering of raids and deportations of vulnerable mothers and children by this administration.

I represented AILA’s San Diego Chapter in this reenactment but wholly admit that I participated because I really wanted to shout in Chinese and tell people that I was a part of the “22 Lewd Chinese Women.” Sadly, I was not cast as one of the women. But as I listened to the direct and cross-examinations, the quick condemnations of an entire population of people seemed so similar to what is going on today. Back then, society questioned the motives of Chinese women entering the country. It was enough for someone, with no expertise in the culture, to say that their clothes resembled those worn by prostitutes because they were gaudy with large sleeves. That’s all it took to affirm the notion that they were whores and for a California court to order the women be returned to China.

Continue reading ‘Ghosts in History?’ »

March Sadness

Originally posted on Huffington Post

“Where’s your Green Card! Where’s your Green Card! Where’s your Green Card!…”

That was the despicable taunt that met Kansas State point guard Angel Rodriguez during the first-round NCAA tournament game between Kansas State University and the University of Southern Mississippi. Never mind that Rodriguez, a native of Puerto Rico, is a U.S. citizen. His surname and brown skin were enough to lead Southern Mississippi band members to put on an ugly display of prejudice, humiliating themselves and their university.

It goes without saying that the incident should be investigated and the perpetrators disciplined. Southern Mississippi has since publicly apologized to Rodriguez. Such bigotry has no place anywhere in America, least of all on a university campus.

But can we really be surprised by the horrid display of anti-Latino prejudice? Is it not the foreseeable result of the coded hate-speech of the anti-immigrant restrictionists who day after day use the Internet, print media, and airwaves to disseminate their message of hate aimed at Latinos? The nativist restrictionists are a coalition of hate groups which rely on myths, half-truths, and bald-faced lies to frame the immigration debate in foul racist terms. They’ve concocted the grand myth of a “Latino invasion” — hordes of brown people streaming over America’s southern border to spread disease, crime, poverty, and every other social ill imaginable.

The modern day nativist movement began as a relatively obscure “population control” effort. In the 40 years since it has grown into a network of associations, groups, and so-called “think tanks” and “legal institutes” many of which are linked to a small cadre of people, including nativist John Tanton, whose disturbing ties to white supremacists and white ethno separatists have been documented by the Southern Poverty Law Center. Their common purpose is to stop further diversification of America by ending immigration; particularly Latino immigration. To achieve this ugly goal, they’ve carefully masked their policy proposals with nuanced terms like “immigration time-out” (end all immigration, legal and unauthorized) or “reinterpretation of the Constitutional Citizenship clause of the 14th Amendment” (eviscerate core principles of American democracy). To vilify and dehumanize Latinos, the nativist restrictionists have succeeded in incorporating racially charged terms like “illegal alien” and “anchor baby” into the mainstream of American discourse. Today such obnoxious words are commonly found in the mainstream print and electronic media and have become largely accepted as part of the American vocabulary.

This year the nativists have played an increasingly prominent role in the presidential primaries, running slick ads and endorsing candidates. Nativist lawyer Kris Kobach, one of the main authors of Arizona’s infamous “papers please” anti-immigration law, publicly joined Mitt Romney’s campaign team advising him on immigration issues. Sheriff Joe Arpaio, who, according to a recent Department of Justice report, has used his office to engage in a pattern and practice of civil rights abuses in Latino neighborhoods in Maricopa County, has also endorsed presidential candidates and was spotted prominently seated at the Arizona Republican presidential debate earlier this month.

Is it surprising then that the hateful anti-immigrant rhetoric with its thinly veiled anti-Latino messaging has metastasized like a cancer into the minds of some of America’s youth? Yet as ugly as the display at Southern Mississippi was, it also presents an opportunity — a national teaching moment — especially since it happened as the Mississippi state legislature was passing its version of the Arizona and Alabama anti-immigrant laws.

As Americans we should welcome and encourage a robust and frank discussion about immigration policy and how to make it work so that it protects and expands job opportunities for American workers, keeps our economy globally competitive into the 21st century, and restores due process. But we must remove hate from the discussion and replace it with tolerance, open-mindedness, and respect. If we do that then perhaps a promising American athlete like Angel Rodriguez will no longer be forced to endure racist jeers aimed at the color of his skin and the name the back of his basketball jersey.

Follow David Leopold on Twitter:

MSU* on Steroids

In an announcement of a report released today, the Center for Immigration Studies (CIS) declares that “[n]early 200,000 children are estimated to have been born to women lawfully admitted as temporary visitors from all over the world in 2009.”  The report then goes on to suggest that these children may grow up to be terrorist threats.  Hmmmm.

First, let’s look at the actual report to see what CIS has done to concoct its numbers:  they calculated the number of births from foreign visitors by figuring out how many admissions to the U.S. were of women of child-bearing age that enter as visitors and stay for more than three months, and enter as longer-term nonimmigrants and stay for more than six months.   In the latter category, CIS acknowledges that multiple admissions of one person are common, so cuts the number in half (not sure why they don’t find that the case with the visitors).  CIS then assigns them an average fertility rate and assumes that they are producing children at that rate in the United States.

Even assuming that their estimates of the number of women of child-bearing age who visit the U.S. are correct—a doubtful proposition in and of itself—they reach the odd conclusion that an average of  5 to 10% of these female visitors are having babies while they’re here.

Really?  That would mean that one in twenty 18-year-old au pairs has a baby in the U.S.  Or that shopping malls, national parks and amusement parks would be hotbeds of foreign national births, since according to USA Today, the top two activities of foreign visitors are shopping and going to parks, both man-made and natural.  Clearly, that’s not happening.  I mean when was the last time you saw a foreigner having a baby while shopping at Nordstrom or visiting “Old Faithful”?

Could there possibly be something wrong with CIS’ numbers?  Perhaps that they were extrapolated out of thin air to scare the American public?

But the numbers part of the “study”  is actually the least cartoonish part of it.  The rest befits some extremist website lurking in the far corners of the internet and prone to espousing myths and half truths in support of some outlandish theory.

CIS claims, apparently seriously, that the Constitutional grant of citizenship to children born on American soil creates citizen terrorists.  Citing two accused terrorists as examples, CIS leaps to the conclusion, without citation to any credible study, that Constitutional citizenship is somehow a threat to America.  Of course, it does not bother to explain how these children, by virtue of being born to visitors, somehow pose a greater threat or are more likely to resort to violence than a Timothy McVeigh, Eric Rudolph, Ted Kaczinski, or Jose Padilla, all of whom were born to U.S. citizens.  Nor does it explain many thousands more of children born to non-U.S. citizens (including visitors) who have gone on to put their lives on the line defending the U.S. in the military, become community leaders, found businesses and create jobs, cure diseases, or invent shiny new toys for Americans to play with.

CIS, it’s time to stop *Making Stuff Up.

Why Those Opposed to Illegal Immigration Should Love the 14th Amendment

I have been pondering the issue of birthright citizenship now that it’s (unbelievably) under fire, and there is one thing I just can’t figure out. Why are those who are staunchly opposed to illegal immigration not defending the 14th Amendment just as staunchly?

After all, the 14th Amendment sets up a very clear structure that helps us define who has a right to citizenship and who does not: those born here have the right to full citizenship (unless, as in the case of certain children of diplomats, one is born here but not subject to U.S. jurisdiction—an exception.) What is the alternative? A very messy system under which those who are born here would have to show additional forms of proof as to the status of their parents in order to claim a right to U.S. citizenship. If it is difficult now to determine who has a legal right to be in the U.S., it’s certainly not going to get any easier if we start making fine distinctions among those people actually born here. If –as many allege—our current immigration system is prone to fraud, consider the potential expansion in the market for counterfeit documents if proof of the status of parents is required of those born in our country.

Certainly those who seek to reduce –indeed, eliminate– illegal immigration to the United States could not possibly be in favor of creating an entirely new class of U.S. inhabitants whose right to remain here legally is amorphous and uncertain. And those who point to the dollars we have to spend to deal with illegal immigration could certainly not support the creation of the bureaucratic apparatus that we will surely need to wade through the paperwork morass in order to figure out who is and is not a citizen by birth in the U.S.? Or could they?

One of the original reasons for passage of the 14th Amendment was to avoid the creation of two groups of U.S.-born residents—those with access to all rights and privileges offered by this country and those cut off from those rights and privileges. That made sense 150 years ago, and it still makes sense today.

What Part of “Legal” Don’t You Understand?

The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?


It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.




In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

These chilling words, authored in 1857 by Chief Justice Charles B. Taney, are the foundation of the infamous Dred Scott decision that led to adoption of the Fourteenth Amendment including the following “Citizenship Clause”:

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.

Directly overruling Dred Scott and codifying the common law concept of birthright citizenship, the Fourteenth Amendment forms the cornerstone of American civil rights by ensuring due process and equal protection under the law to all persons.

Thus, it is nothing less than shocking that today, after more than 150 years, during which time Americans have fought and died for the right to be free from slavery, discrimination, and other forms of degrading and inhumane treatment, we bear witness to a brazen attack on our Constitution’s guarantee of citizenship.  In what the New York Times has described as an “unusual coordinated effort” perhaps as many as 14 states plan to celebrate the convening of the 112th Congress by introducing a “model” bill aimed at stripping citizenship from the children of immigrants, documented and undocumented alike.

What is not surprising, however, is that the same individuals responsible for drafting Arizona’s infamous SB 1070 “Show Me Your Papers” law and other now discredited anti-immigrant ordinances around the country, are taking aim at the Fourteenth Amendment.  Those who strive to turn the clock back to 1867, when Dred Scott was the law of the land, have yet to cite a single credible study or report supporting their ill-advised position that evisceration of the Citizenship Clause will solve any particular problem associated with our badly broken immigration system.  Nor do they bother to explain exactly what problem it is they intend to fix.

Does giving birth in the U.S. give a legal or illegal immigrant mother or father immediate U.S. citizenship or green card status?  No.  Parenting a U.S. citizen child confers no right to be in the U.S. whatsoever.  Just ask our friends at the Immigration and Customs Enforcement who forcibly deport parents of U.S. citizen children day in and day out.

Does giving birth in the U.S. entitle an immigrant parent to citizenship in the future?  Maybe, but only after 40 years! Here is how: to sponsor an illegal immigrant parent a U.S. citizen child must be 21; assuming approval of the requisite family-based petition, the intending immigrant parent must depart the U.S. to be admitted as a permanent resident.  Since the parent’s prior unlawful presence upon departure triggers a 10- year bar to returning, absent a waiver,  the illegal parent’s grand plan to obtain U.S. citizenship by “anchoring” or “dropping” a baby in the U.S. typically takes, at minimum, the better part of a half century.

Are opponents of constitutional citizenship really concerned about purported hordes of women coming over the border to give birth so they can wait 40 years for U.S. citizenship?  The notion is patently absurd.  Yet the attack on the Fourteenth Amendment is instructive to students of the current immigration debate.  It tells us something about the real motives behind the restrictionist movement in the U.S.  For years the mantra of anti-immigrant groups such as FAIR, the Center for Immigration Studies, or NumbersUSA has been captured in slogans such as “What Part of Illegal Don’t You Understand” or “Illegal Means Illegal.”  The subtext?  These groups would have you believe they stand for law and order; it is not immigration they oppose, but rather those who choose to disregard the law.

Birthright citizenship is enshrined in the Constitution.  It could not be more legal.  It would seem logical, therefore, that restrictionists and nativists would embrace the Fourteenth Amendment as part of their unwavering commitment to the rule of law.  Their current effort to eliminate or “reinterpret” the Citizenship Clause offers a window into their true versus claimed motivation, namely, to stop immigration, particularly Latino immigration, even at the cost of abridging civil rights and returning our nation to the days of Dred Scott when people were viewed as commodities to be bought and sold and abused for a price.

The Citizenship Clause of the Fourteenth Amendment has very little to do with immigration, it is fundamentally focused on the preservation of civil rights.  And rather than challenge a Constitutional provision that reversed a notorious Supreme Court decision, the effect of which was to dehumanize and deprive African Americans of U.S. citizenship, politicians at all levels of state and federal government would better serve this nation by devoting their precious time and tax payer dollars to fixing our broken immigration system.

With their newly minted attack on the Fourteenth Amendment, the restrictionist movement seeks to bring the immigration debate to a new low, ignoring the profound danger associated with doing so. Through their willingness to eliminate fundamental Constitutional protections, they reveal that their complaint is not about illegal immigration but America as we know it.  Perhaps we should thank them for highlighting the real issue:  like it or not, we are embroiled in a struggle for human rights and reclaiming America’s soul.  Our battlefield is the broken immigration system and it is in that context we are challenged to define our essence as individuals, as a people, as a culture, and as a nation.  We must grapple with where we have been and where we want to go.  What kind of a country do we want to be?  Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict out of ignorance and xenophobia critical opportunities for engineers, entrepreneurs, researchers and scientists?  Do we want to be a nation that values equality and fairness or one that turns back to the days of Dred Scott?

I know which nation I want.

The Next Goal–Eviscerating the 14th Amendment

blog by Charles Kuck, AILA Past President

The next goal of the anti-immigration crowd is to eliminate what some call “birthright” citizenship. This is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen. Have no doubt about it, despite what you will read below, the anti-immigrant movement, including folks like new Arizona Senate President Russell Pearce, and new Kansas Secretary of State Kris Kobach have plans in the works to try to destroy this fundamental and well settled constitutional issue. For folks like Pearce and Kobach the overriding concern is not the rule of law (if it were they would follow the law), rather, their concern is purging the United States of immigrants and if that means trying to overturn 130 years of Supreme Court precedent, so be it.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that somehow, a U.S. born child is born of a mother or a father who was NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States. Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth. That is the reason that websites like exist, to try to dispel myth and rumor from factual and supportable truth.

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my lobby. As noted in Wikipedia:

This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left out indentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.

In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.”

The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”.

So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard.

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866:

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, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.

See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases.

Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. .

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether:

a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.

For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens.

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birther movement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Fernando’s Hideaway

By Crystal Williams and David Leopold

Washington reminds us of Fernando Lamas, the Saturday Night Live character played by Billy Crystal who would interview various celebrities, often confusing them with someone else.  Always during the interview he would say, “You look mahvelous” and the sketch would end with, “It’s better to look good than to feel good.”

In Washington, it’s all about looking good too.  It doesn’t matter what the reality of any given situation might be.  All that matters is how it looks so that it can be packaged into a talking head sound bite and sold to the American public lock, stock, and barrel.

In the national “debate” on immigration, it’s all about looking good too.  It doesn’t matter if what is being said is accurate, or if what is being proposed is effective.  It only matters if someone notices you look tough on immigrants, even if what you propose or pass does nothing to fix our broken immigration system.

So we get a Senator once known for his integrity and thoughtfulness suddenly making up a phenomenon that doesn’t exist (“drop and leave”) and using it as a basis to argue that we ought to make stateless persons of innocent babies born in the U.S. to foreign nationals.  Then we get a group of Senators who only days ago stood for a comprehensive approach to immigration reform suddenly proposing—and passing—an enforcement-only measure that offers no solutions and accomplishes nothing more than adding to the national deficit.

In the meantime, we have approximately 11 million people, the vast majority of whom are here for no reason other than to better their lives and the lives of their families, living in the shadows and vulnerable to exploitation.  We have an over-taxed deportation system that can’t seem to figure out which way to turn.  We have a immigration detention apparatus in which 113 people have perished since 2003.  We have politicians all out-promising and under-delivering.  Nothing is fixed.  No progress is made.

It’s time to stop worrying about how it looks and start looking at how it works.  We know what needs to be done.  Now, will our so-called national leadership show a little courage and do it?  Or will they pretend, like Fernando did, that everything just looks “mahvelous.”

10 Reasons Amending the Constitution to End Birthright Citizenship Is a Terrible Idea

guest blogger Greg Siskind, AILA Board of Governors

One of the greatest accomplishments of the Republican Party was actually one of its earliest. After winning the Civil War and freeing the slaves, the Grand Old Party worked to pass the 14th Amendment to the Constitution, the bedrock of civil rights protections in the U.S. that has served as a model to democracies around the world. The accomplishment was so significant that the GOP touts it in its list of greatest accomplishments   (

So it is, of course, shocking that in the days following the defeat of the Arizona law by a judge in that state, a number of Republican Senators have come forth calling for the repeal of the 14th Amendment’s provisions on birthright citizenship.

The 14th Amendment guarantees that all children born in the U.S. (with narrow exceptions for children born to diplomats) are U.S. citizens. While some have argued that the 14th Amendment doesn’t clearly protect birthright citizenship, this has been established law for more than a century. The Supreme Court removed any doubt of this in the 1898 United States v. Wong Kim Ark case where, by a 6-2 majority, the Supreme Court held that:

The fourteenth amendment reaffirms 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 public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single exception of children of members of the Indian tribes owing direct allegiance to their several tribes… To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treats as citizens of the United States.

Nearly three decades ago, the Supreme Court relied on Wing Kim Ark in the case of Plyler v. Doe to make clear that the 14th Amendment applies to ALL persons born in the U.S., whether their parents are legally present or not.

Extremists have been complaining about so-called “anchor babies” for some time. To listen to them, one would assume that millions of these children are growing up in America today or will one day choose to exercise their citizenship rights and enter the U.S. Few except politicians on the fringe were willing to support the extremists. But in the last several days, a number of lawmakers have lost their inhibitions and are openly calling for a Constitutional Amendment.

Once the shock of the suggestion wears off, it does pay to at least think about some of the basic reasons why we need to steer clear of an Amendment. Here are a number of reasons why.

1. This is a “solution in search of a problem.”

To hear Lindsey Graham’s and his allies’ description of “drop and leave,” Americans understandably might assume that there are millions of people coming to the U.S. to have children. Is there really any truth to this allegation?

The anti-14th Amendment folks simultaneously talk about two groups of individuals when discussing amending the Constitution. One is the group of mothers that is illegally present in the U.S. having children and the second are mothers who come on so-called “birth tourism” packages legally to the U.S. so they can claim citizenship for their kids.

On the first issue, there is little evidence that a significant number of mothers illegally enter the U.S. for the purpose of having children. The burden of proof should be on proponents of tinkering with one of the cornerstones of American democracy. Before changing the Constitution, we should have clear evidence that there is a problem rather than the anecdotes of politicians pushing an anti-immigrant agenda.

It is true that many mothers here illegally do have children, but their purpose for being in the U.S. is generally to work or to be with a family member who is the breadwinner. This is probably the group that Graham is targeting and he should be honest in saying that the goal is to punish people who are here illegally and to disenfranchise their children as opposed to stopping a mythical “drop and leave” crisis.

As for maternity tourism, there is actual real evidence to point to that shows that this problem is miniscule. According to the Center for Health Care Statistics, fewer than 7,500 births out of an annual 4,000,000 births are to mothers who report residing outside the country. And some of those mothers are U.S. citizens residing abroad as part of the community of 6,000,000 Americans who live overseas.

And perhaps the reason so few mothers come to the U.S. just to have a child is because the immigration benefits are not what these Republicans would have people believe. Children born in the United States cannot sponsor their parents for immigration benefits until after they turn 21 years of age.

Nevertheless, to the extent that there is a “maternity tourism” industry, the better approach to dealing with this is to enforce our existing laws that bar the use of visitor visas for such a purpose. Targeting companies and individuals engaged in this type of visa fraud would go a long way to curtailing this sort of activity.

2. Ending birthright citizenship would not end illegal immigration.

There is no evidence that immigrants come to the United States to have children. They come for jobs. Taking away birthright citizenship would not change this. What would happen is the number of illegally present immigrants would increase dramatically as many children of illegal immigrants are added to the ranks of the illegally present and who knows how many others would be added to the list of the undocumented because they are unable to prove citizenship even if they are entitled to it.

3. Implementing a Drastic Change to the 14th Amendment Would Be Enormously Difficult to Administer and Hugely Expensive.

Because U.S. citizenship laws are so complex and all Americans would no longer have the most basic proof of citizenship – the birth certificate – available, most would have to go through a legal process that would be expensive for the government and the individual. The government would need to hire thousands of lawyers and other examiners, and individuals would also need thousands of new lawyers to help with this process once we get through years of litigation to determine how we actually define citizenship and what is a fair way to prove it.

4. Where exactly do you draw the line?

One of the biggest potential problems with looking at something of this sort is figuring out which population to target. Just the children of illegally present immigrants? What about when one of the parents is a citizen and one is an illegally present immigrant? What about when the parents are unmarried. Does it matter if the father is the citizen as opposed to the mother? If not, in situations where the mother is not legally present and she is not married to the U.S. citizen father, the mother would need to first prove the paternity of the child, something that could be difficult or impossible particularly for individuals without the means to sue for paternity. Should it make a difference if the legally present parent is a lawful permanent resident and not a citizen? How about a legally present non-immigrant?

If the target is broader and we’re going after anyone whose parents are not permanent residents or citizens, does it matter what type of non-immigrant status the person holds? Should a tourist be treated differently than a student or a non-immigrant work visa holder? What about people working on non-immigrant visas but waiting on long lines for permanent residency such as Indian and Chinese advanced degree holders?

5. The citizenship of millions of Americans would suddenly come into doubt.

If birth in the United States is no longer proof of citizenship, a great number of people would have great difficulty proving they are entitled to citizenship. People would face extraordinary administrative obstacles and be forced to hire lawyers to prove entitlement to citizenship. Waits for passports would be extremely lengthy since for all people it would be the main way to prove they are American. Right now there is no registry of U.S. citizens and people generally rely on proving their birth in the U.S. to demonstrate citizenship. One survey by the Brennan Center at New York University found that more than 13 million people would not be easily able to prove their citizenship.

Many other questions would also naturally arise. What about the grandchildren of illegal immigrants? As noted above, figuring out what to do when one of the parents is legal and the other not raises a number of questions over how citizenship is transmitted in the absence of birthright acquisition. If citizenship is not defined by being born in the U.S., then how does one acquire citizenship? For most African Americans, citizenship was likely originally acquired in their families because of the 14th Amendment itself. Are only individuals who immigrated going to qualify? What about Native Americans?

A Pandora’s Box if there ever was one.

6. The American system of assimilating immigrants that has worked successfully for generations would be put under serious threat by creating a permanent two-tiered society with a permanent new underclass.

Taking away citizenship from the children of immigrants would mean more than just not being able to cast votes in elections. It means no driver’s licenses, no in-state tuition, no ability to work legally and so on. Instead, we would have a class of individuals with no real connection to any country other than the U.S., but no ability to become productive participants in our society. This new stateless class would be forced to live in the shadows. For some, they won’t be deportable because their parents’ countries are not legally obligated to take them. This new stateless group of individuals would be stuck in a limbo of not being able to participate in American society but having no other country to which to go as an alternative. Such individuals would be vulnerable to exploitation and criminal activity.

7. It’s a slap in the face to African Americans

After the Civil War, there were many, including President Andrew Johnson, who were prepared to continue to deny citizenship to slaves and their newly freed children because they were not “ready” to take on the responsibilities of citizenship. The Fourteenth Amendment guaranteed that no class of individuals would ever have to show they were up to snuff when it came to deserving citizenship, and it is the Fourteenth Amendment that has been the basis of major civil rights progress in the area of voter rights, equal access to justice, protection against workplace discrimination, etc.

The idea of scrapping birthright citizenship has been the cornerstone of nativist and racist organizations for some time and the fact that supposedly mainstream Republicans have suddenly started discussing this topic in polite company doesn’t make it less offensive. The sacrifice of countless individuals who gave their lives to win these rights is not honored by even having this discussion.

8. Birthright citizenship is in the Constitution precisely to avoid “the tyranny of the masses.”

The 14th Amendment is in place precisely to protect individuals from politicians with their own interests in mind as well as the sentiments of the time. The Constitution has only been amended 17 times since the Bill of Rights and never to take away civil rights from any class of people. The framers of the 14th Amendment made birthright citizenship an “inalienable” right and tampering with this really places into question whether our American system of rights and freedoms has been a failure.

9. Where do they stop?

The 14th Amendment has been in place since just after the Civil War and no Congress has ever opened the door to cutting out groups from its protection. Today the discussion involves the children of those illegally in the U.S. Some proposals seek to bar the children of anyone but lawful permanent residents and U.S. citizens. But what is to say that we don’t then move to stripping out other children of those who do not “deserve” to have their children awarded U.S. citizenship. Perhaps deny birthright citizenship to the children of those with criminal records? How about the children of same sex couples? What about where the parents express “anti-American” views? The folks pushing to repeal the 14th Amendment birthright citizenship rules are doing so to punish the behavior of the parents. Once we open the door, is it really that hard to envision pushing to add more and more groups?

10. Do we really want to start deporting babies?

That’s essentially what this proposal means. Is this really something our society has the stomach to do and is this really what Americans want to spend our tax dollars pursuing?

Even having a serious debate about this subject has the potential to tear society apart and the grownups in the GOP need to seize control and make it clear that the party does not endorse the idea. Aside from being the morally right thing to do, it’s also smart politics. At this point, the GOP is on the verge of so offending Hispanic voters in order to appease a tiny segment of the public that they risk losing the trust of Hispanics for generations.