The Fourteenth Amendment has become the gateway to easy U.S. citizenship for those from other nations who are willing to lie, cheat, and steal American citizenship for their U.S.-born children. The Reconstruction Era provision was intended to benefit only former slaves with American citizenship. Today, however, this amendment's citizenship clause has been stretched far beyond recognition.
In recent years, illegal aliens and foreign "birth tourists" exploit this loophole by entering the United States with the intent of having their babies here. That act gives their newborns automatic American citizenship.
With U.S. citizenship, those children qualify for a panoply of rights and privileges. They automatically become eligible for welfare, "free" public education, "free" health care, and immigration benefits -- that is, these "anchor babies" as adults may sponsor their foreign parents and extended relatives for visas.
The Slide to Wide
What does the Fourteenth Amendment say? Section 1 of the amendment defines as a U.S. citizen "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof." Note that the citizenship clause has two distinct parts. One is a person's being born or naturalized in the U.S. The other is that such a person is "subject to the jurisdiction" of the United States. Both factors are supposed to be satisfied before someone gains American citizenship.
U.S. Sen. Jacob Howard, who wrote this clause, said that "subject to the jurisdiction" would "not, of course, include persons born in the United States who are foreigners" or "aliens." Awarding U.S. citizenship by birth in this nation got around some states' definitions of citizen that deprived slaves and, following the War Between the States, former slaves of such status.
Adding the "subject to the jurisdiction" clause limited who would qualify for national citizenship, even though someone might have been born here. The contemporary case the authors had in mind was American Indians, who were subject to the jurisdiction of an independent sovereign, their tribal government.
This dual conception makes sense and clearly limits U.S. citizenship to people born in this country to parents who owe allegiance as citizens or permanent lawful residents to this nation. What went wrong?
The U.S. Supreme Court ruled in 1898 in the case of a U.S.-born man whose parents were Chinese imperial subjects, but who had lawfully lived and worked in California for a number of years. The parents had never been the Chinese emperor's diplomats or served him in any official capacity (a sure sign that they stood subject to Chinese jurisdiction). The court ruled in United States v. Wong Kim Ark that the U.S.-born son was a natural-born U.S. citizen, as defined under the Fourteenth Amendment.
This opinion started a steady slide downhill in the legal recognition of U.S. citizenship. Wong Kim Ark, which many experts regard as wrongly decided, led to the eventual widening of American birthright citizenship to apply de facto to U.S.-born children of temporary resident aliens, even children of illegal aliens.
Birthright Citizenship on Steroids
Though hard to measure, few dispute that thousands of foreigners have exploited the misguided practice of ignoring the "subject to the jurisdiction" requirement in awarding birthright citizenship. Center for Immigration Studies analysis of census data indicates the birth of 383,000 "anchor babies" each year. About half of that number may have been born to aliens admitted as visitors. An estimated 39,000 birth tourist babies were delivered in the U.S. in 2009, while another 25,000 children were borne by temporary visa holders present here.
Illegal aliens appear responsible for many of the anchor babies, apparently from Latin America. This isn't new. A nurse who did her training in Southern California two decades ago recalls every day seeing pregnant Mexican women, most presumed to be illegal aliens, waiting under the shade trees on the hospital lawn. When their water broke, the women went into the emergency room to deliver U.S. citizen babies on U.S. taxpayers' dime.
Thanks to Wong Kim Ark's wrongheaded legacy, foreigners in the United States as tourists, students or on other temporary visits now give birth to U.S. citizens. Yet, the parents have no fundamental legal ties to this nation, which is what "subject to the jurisdiction" refers to. That sort of legal obligation goes far beyond merely obeying the general laws of the land while within our borders. This cheapening of U.S. citizenship is worsened by the darkening shadows of dual citizenship and dual nationality, transnationalism and an expanding welfare state.
A mushrooming angle for deliberately pursuing birthright U.S. citizenship involves birth tourism. Foreigners travel to America in the final month or two of pregnancy in order to deliver a baby who gains automatic U.S. citizenship. Birth tourism appears to be proliferating, especially from Asian and Eastern European countries.
China Daily reported on this growth sector. A Taiwanese birth tourism agency's mainland China partner told the newspaper: "The number of mainland customers has been skyrocketing since we opened the branch in late 2008, right after the U.S. opened tourist visa applications to Chinese individuals." This agency alone had 50 clients a month by mid-2010.
Birth tourism agencies coach their clients in how to mislead U.S. officials, help clients circumvent legal barriers and sell middle-class Chinese on the idea that they are buying their babies a bright future.
These agencies operate on a business model that systematizes gaming the system. China Daily reported, "Usually, parents use tourist visas to travel to the U.S. when the pregnancy is in the sixth or seventh month. Typically, they stay for between three and six months, then return with their new arrivals. Jiang [Feng, the Chinese agent,] said the agency trains couples to obtain visas and tells them how to handle themselves during U.S. customs interviews."
A report by the Economic Observer recounts one such Chinese woman's practiced deception: "Liu Li knew that going through customs would be a lot easier than obtaining a U.S. visa. In order to obtain the tourist visa that enabled her to go to America for the delivery, she had to carefully choose her clothes, and spend a lot of time practicing her walking and interview techniques. She memorized a host of details about her hotel booking and about famous sight-seeing spots so as to convince the embassy officer that she was just another Chinese woman going shopping in the states."
The calculated scheme continues: "Since most airlines refuse to accept women passengers who are more than 32 weeks pregnant, Liu Li set off for America when she was six months pregnant and then checked into a Chinese birthing center in California. After her arrival, Liu Li realized that the area was full of facilities set up for Chinese women like herself."
The foreign-catering birthing centers operate without a business license, which is to say illegally, and thus go unregulated by American health authorities that would oversee any other health services provider. ABC News calls birth tourism "a nascent industry of travel agencies and hotel chains seeking to profit from the business." For example, the Turkish-owned Marmara Manhattan hotel in New York City promotes special packages for foreign mothers-to-be.
Even the U.S. government aids and abets this fraudulent misconduct. "In my experience as a consular officer, I encountered on a daily basis visa applicants who had previously given birth in the United States and who I strongly suspected were intending to give birth in the United States again. The most frustrating aspect of this whole process was that my superiors expressly told me that I could do nothing to stop it. As it stands now, the State Department's Bureau of Consular Affairs has instructed consular officers that they are not allowed to ask visa applicants if they are pregnant or if they intend to give birth while visiting the United States, and cannot deny visas to applicants who have previously traveled to the United States with the apparent sole intention of giving birth to a child."
Planning the American Family
The United States could and should take steps to end birthright citizenship. Of course, we could amend the Constitution to clarify and correct the Fourteenth Amendment, restoring its original intent. We should do that. But it will take time.
We could (and definitely should) enact Rep. Steve King's H.R. 140, the Birthright Citizenship Act. This legislation would require at least one parent of a U.S.-born child to be an American citizen or lawful permanent resident.
In short order, though, we could step up enforcement against the very kinds of fraud perpetrated in birth tourism.
ABC News mistakenly asserted that all of this "is perfectly legal as long as immigrants are able to pay their own way." Wrong. Lying about their true intent for seeking to enter the United States constitutes fraud. Under federal criminal statutes regarding false statements related to immigration, that's a felony and the first offense alone can land someone in prison for up to a decade.
We also should restore the revocation of U.S. citizenship and end dual citizenship. And we should crack down on the people who are making money on this scam, the foreign middlemen, travel agencies, safe house centers and hoteliers that cater to birth tourism.
We have every right to exercise our sovereignty in this area. In 1889, a unanimous Supreme Court held in the case of Chae Chan Ping v. United States, "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power."
This problem boils down to an assault on our national sovereignty. In the meantime, we can -- and should -- deny entry into the country by any foreigner who shows up pregnant.