Still Making Headlines
The American argument over birthright citizenship continues, with
unexpected twists and a profound constant—the nation is still one of
immigrants. The 2010 census counted some 40 million residents—13 per-
cent of the population—were born elsewhere. Rules on lawful entry and
stay are strict, but some estimates have more than 20 million people liv-
ing illegally in the United States.
Jus soli reverberates far beyond anything members of the 39th Con-
gress could have imagined. In 1866, the country had no curbs on entry;
today, birthright citizenship can legitimize the status of immigrants who
entered illegally. In 2017, nearly 150,000 people became permanent resi-
dents based on sponsorship by their children, the Department of Homeland Security states.
When unauthorized immigrants have a child in the United States, that child is a citizen. Raising a
child who is a citizen enhances parents’ chances of gaining permanent residence. Upon turning 21,
that child can sponsor his or her parents for lawful permanent residence. These offspring often are
called “anchor babies,” a term immigration advocates view as pejorative. The Center for Immigration
Studies says more than 300,000 American children per year are born to unauthorized immigrants. Jus
soli has spawned birth tourism, a social phenomenon and a business. Affluent foreigners on tourist visas flock to bear chil-
dren on American soil, obtaining a foothold on residence—highlighted recently by federal indictments arising from 2015
raids on Los Angeles-area operations alleged to engage in visa fraud, wire fraud, and identity theft. Chinese women pay as
much as $80,000 to companies that handle logistics, providing “apartments in complexes boasting resort-style opulence
and amenities and outings to upscale eateries, Disneyland and a shooting range,” the Wall Street Journal reported in 2015.
Miami-based birth brokers charge comparably to provide such services to Russian and Brazilian women. “Crowds of preg-
nant girls come here and then take away crowds of little Americans,” a Russian mother who gave birth in Miami told the
London Times in 2018. Customers pay separately, usually in cash, for medical care, often obtaining U.S. passports for their
babies before returning home. No law regulates such expeditions, as long as pregnant travelers do not lie about their visits’
purpose. The Center for Immigration Studies estimates that birth tourists have more than 30,000 American babies per year.
Since the 14th Amendment enshrines jus soli, only a new reading by the U.S. Supreme Court or a constitutional amend-
ment can change that principle. A 2015 CNN/ORC poll showed that half of Americans favor retaining birthright citizen-
ship, even for children of unauthorized immigrants; 49 percent want the law changed.
Congress repeatedly has weighed and found wanting bills to eliminate jus soli for visitors’ children or unauthorized
immigrants’ offspring by requiring that at least one parent be a citizen or a legal permanent resident. The U.S. Justice
Department insists that only a constitutional amendment—a process that requires a two-thirds vote by both houses of
Congress and ratification by three-quarters of the 50 states—can change birthright citizenship. Great Britain, originator of
the American principle of jus soli, eliminated unconditional birthright citizenship in 1981, limiting jus soli to children with
at least one parent who is a British citizen or a lawful permanent resident. —Joseph Connor
except for the children of foreign ambassadors and Native
Americans, “[e]very person born in the United States, and
subject to the jurisdiction thereof, becomes at once a citizen
of the United States, and needs no naturalization.”
To hold otherwise, Gray noted, “would be to deny citizen-
ship to thousands of persons of English, Scotch, Irish, Ger-
man, or other European parentage, who have always been
considered and treated as citizens of the United States.” Two
justices disagreed. Dissenting Chief Justice Melville Fuller
saw peril in jus soli for parents in the country unlawfully. The
parents could be deported, he wrote, but as citizens, their
children could stay. He decried as “cruel and unusual punish-
ments” any move to “tear up parental relations by the roots.”
Wong Kim Ark, still in effect today, seemed to settle the
issue of birthright citizenship. However, the decision may
have left open the question of jus soli for the temporary visi-
tors’ issue and for children of those in the country unlaw-
fully. The Supreme Court did not explicitly address either
scenario because Wong’s parents were neither temporary
visitors nor illegal aliens. They had emigrated before 1882 to
settle and to run a business.
Birthright citizenship remains a flash point, and full reso-
lution of the issue’s disputatious aspects may require another
Supreme Court ruling, perhaps equal in significance to the
Court’s 1857 citizenship ruling. “Stay tuned,” legal scholar
James C. Ho, now a judge on the U.S. Court of Appeals, wrote
in a 2006 law journal article. “Dred Scott II could be coming
soon to a federal court near you.” +
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Family Anchors
In 2017 nearly
150,000 people
became American
citizens through
child sponsorship.
JUNE 2019 39