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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Monday, August 24, 2015

Trump, 'Anchor Babies' and the GOP's Birthright Boondoggle

US News & World Report
By Gabrielle Levy
August 22, 2015

Donald Trump has climbed into the upper ranks of Republican candidates, and he’s brought with him an immigration policy that was previously relegated to the fringe.

Trump’s recently released immigration plan includes a provision to end birthright citizenship, the guarantee that any child born on U.S. soil is automatically granted American citizenship. The practice comes from Section 1 of the 14th Amendment, which begins, "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."

Better known in recent decades for its guarantee of due process of law and its Equal Protection Clause, Section 1 of the 14th Amendment has frequently been used as the tool to move important civil rights advancements forward and was at the heart of the cases abolishing "separate but equal" access to public services in the Jim Crow South and forced the integration of schools. The amendment was cited in the justification to legalize abortion in the 1970s and, just this summer, gay marriage. It also handed Former Florida Gov. Jeb Bush's older brother, George W. Bush, the presidency in 2000, when the Supreme Court ruled different standards of counting ballots violated the Constitution.

But upon its ratification in 1868, in the wake of the Civil War, the 14th Amendment was the mechanism to grant former slaves U.S. citizenship and protection under the law.

Proposals to revoke birthright citizenship have been around for decades, including legislation introduced in Congress earlier this year by Rep. Steve King, R-Iowa, and Sen. David Vitter, R-La. Their aim, they say, is to eliminate incentives for people to come to the U.S. in order to give birth here, providing a way to circumvent the legal immigration queue by taking advantage of politics that make it easier for parents of U.S. citizens to gain permanent residency. Supporters of such legislation say it served its historic purpose and should be repealed, pointing to European countries like Great Britain, France, Germany and Italy, in which citizenship by birthright is not absolute. But their efforts to amend the Constitution with the same goal, for the most part, have had little success.

Perhaps until now.

Following the release of Trump’s plan, several of his fellow 2016 candidates, including Sen. Ted Cruz of Texas, Louisiana Gov. Bobby Jindal and Sen. Lindsey Graham of South Carolina followed Trump by coming out in favor of the policy Wisconsin Gov. Scott Walker on Friday rolled back statements that suggested he also favored the policy, saying he had been misunderstood and would not take a position "one way or the other". Sen. Rand Paul of Kentucky has previously supported birthright citizenship legislation.

“I think he’s done a lot of damage,” says Lynn Tramonte, deputy director of America’s Voice, a pro-immigration reform group. “He’s not only now leading in the polls, but he has the ‘Trump effect,’ pulling other candidates to his position on this issue.”

Democrats pounced, and the party’s congressional campaign arm launched a Twitter ad campaign in six swing states targeting Republicans, including Rep. Mike Coffman of Colorado.

“Republicans, including Mike Coffman, want to end birthright citizenship,” one of the Spanish-language ads said. “Tell @RepMikeCoffman that is wrong.”

The ads also hit Reps. Marthy McSally of Arizona, Steve Knight of California, Barbara Comstock of Virginia, Crecent Hardy of Nevada and Will Hurd of Texas, all of whom represent districts with large Hispanic populations.

Bush, whose past stances on immigration have been more moderate than his party’s, tried to split the difference.

Sen. Orrin Hatch, R-Utah, talks with reporters after leaving the Senate floor at the U.S. Capitol on May 18, 2015 in Washington, D.C.

Signs of Life For Immigration Reform

"This is a constitutionally protected right, and I don't support revoking it," Bush told reporters in South Carolina on Tuesday.

But while he said he would “just reject out of hand” revoking birthright citizenship, Bush used a term that some consider offensive: “anchor babies,” children born to non-citizen parents who travel to the U.S. specifically to give birth and obtain citizenship for their newborns.

"That's the legitimate side of this,” he said on conservative talk radio host Hugh Hewitt’s show. “Better enforcement so that you don't have these, you know, 'anchor babies,' as they're described, coming into the country." 

Bush stood by his comments even as Democrats and immigration activists rained down criticism, saying he "didn't use it as my own language."

"Do you have a better term?" he fired back at reporters in New Hampshire. "You give me a better term and I'll use it."

Democratic front-runner Hillary Clinton piled on, suggesting several alternatives.

"How about 'babies,' 'children' or 'American citizens," she tweeted. "They're called babies."

For his part, Trump has actually taken it a step further than most, suggesting that not only should the 14th Amendment be changed to revoke birthright citizenship, but that it be made retroactive to those U.S. citizens born on American soil to parents without legal immigration status.

“How do you take away citizenship from some babies and not others? You’re essentially inviting the government into the delivery room,” Tramonte says. “He’s questioning whether the Constitution as its been interpreted is even legal. It’s like science fiction.”

Actually changing the law, either through legislative means or a constitutional amendment, is almost prohibitively difficult. The proposed legislation, should it somehow gain the votes to pass Congress and get a presidential signature, would almost certainly face immediate challenge in courts, tying up the issue for years.

And the bar for a constitutional amendment is so high – approval by two-thirds of both the House and Senate and ratification by three-fourths of the states – that it's only been done 27 times. The most recent, which deals with congressional salaries, was ratified in 1992 – more than 200 years after it was submitted to the states for ratification.

The noise surrounding a relatively fringe proposal, while unlikely to result in a change in policy, may have the side effect of muddying the larger issue.

It was already unlikely comprehensive immigration reform would get serious consideration this congressional term, but Trump’s comments may give the birthright citizenship legislation new life. When first introduced this term, only a few dozen members supported the legislation, but given the movement of the party’s would-be standard bearers, that may change.

Rand Paul's Plan to Buy an Election

"Some of the bigger, flashier things that he's said have taken people's eyes off the ball of what's actually achievable," says Theresa Brown, director of immigration policy at the Bipartisan Policy Center. "It's a distraction from the actual issues."

Immigration has risen as a priority for voters in the past five years, with 52 percent of Americans calling it a top priority in Pew Research Center's annual survey, up from 40 percent last year. While Trump's comments have pushed birthright citizenship to the forefront, Brown says voters, including Trump supporters, are looking for leaders who offer practical solutions.

"Voters want somebody who reflects their position and their opinions, but they also want people who actually solve problems," she says. "This just never comes close."

The one candidate so far resisting the pull, however, is Ohio Gov. John Kasich, who supported revoking birthright citizenship while serving in Congress but has since moderated his stance.

Calling the issue a “stumbling block” for Republicans, Kasich said birthright citizenship is settled law.


“This has been a long tradition in America,” he told reporters at a New Hampshire campaign stop Wednesday. “Let’s keep it as it is, and let’s move beyond it.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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