The Debate Over 'Anchor Babies' And Citizenship

NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

The latest hot button issue in the immigration debate centers on the 14th Amendment to the Constitution, which reads in part: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. Some Republicans suggest it's time to think about changing that. They argue too many illegal immigrants come into this country specifically to have a baby and hope to use that so-called anchor baby to get the whole family in. Most Democrats are opposed, and it's important to point out that some Republicans are too.

In a few minutes, we'll read from op-ed pieces on various sides. We want to hear your thoughts as well. Our phone number is 800-989-8255. The email address is talk@npr.org. You can also join the conversation at our website. That's at npr.org, click on TALK OF THE NATION. Later in the program, the perils of flashfloods and swift water rescue.

But first, immigration, anchor babies and the 14th Amendment. We begin with Walter Dellinger, who served as assistant attorney general and acting solicitor general in the Clinton administration. He's now a partner in the law firm O'Melveny & Myers and joins us here in Studio 3A. Nice to have you with us.

Mr. WALTER DELLINGER (Attorney): Thank you, Neal.

CONAN: And the 14th Amendment was passed and ratified shortly after the Civil War. What's the purpose of that first sentence which extends automatic citizenship to anybody born in the United States?

Mr. DELLINGER: Well, the function that that serves for our country is to make citizenship a very objective bright line fact. If you're born here, you're a citizen. That actually was the common law rule from the beginning of the American nation. And it was changed only once, and that - in a monstrous decision with which most of your listeners will be familiar, in Dred Scott vs. Sandford, where the court held that no person of African descent, slave or free, could ever be a citizen of the United States nor could any of their descendants ever be a citizen.

And so Dred Scott in some ways helped bring on the Civil War, and in the aftermath of the Civil War it was thought important, and when the 14th Amendment was passed - it has many provisions in it, the due process clause, the equal protection clause. But the very first one is the opening sentence that you read at the top of the hour, all persons born in the United States are citizens thereof, and that was to make sure that for our country we had a simple objective fact that politicians could never change it, that that, you know, alone was enough.

CONAN: It did not deal with the issue of immigration. There was unrestricted immigration to the United States at that time. So by definition no illegal immigrants.

Mr. DELLINGER: That's correct. The Supreme Court did address this issue in 1898. However, because the horrendous Chinese Exclusion Act passed by Congress actually prohibiting any person of Chinese ancestry from being or remaining in the United States - but the question was, what about a child who was born here of Chinese parents who are themselves subject to being expelled, and the court said the answer is clear from the 14th Amendment: They are citizens, you know, at birth.

And, you know, it's certainly understandable. This concept is certainly, I think, literally quite foreign to many Americans because they - someone who comes to this country illegally, they wonder why should they be rewarded by having their child be a citizen? And the numbers are not insignificant. There are about four million children who are citizens born here of undocumented aliens. About one percent of our population are those who have citizenship that way. In some other countries, you know, you're not a citizen unless your mother and/or your father was a citizen.

CONAN: I think I've read that only Canada, of all of the developed countries in the world, has laws similar to those in the United States.

Mr. DELLINGER: That's right. The rest of the world has sort of gone to more of a system of who your parents are. Now, here's why our history makes us different and singular. That is, because we had enormous experience of trying to deny citizenship to persons of color, slave or free...

CONAN: Mm-hmm.

Mr. DELLINGER: ...we never again wanted to go back there. And there's something also else unique about America. Our identity is changed. Every year, every day, every hour, new Americans arrive here. And in other countries, they can go back and decide whether you're a legitimate person, a legitimate citizen, by seeing whether your father was legitimate or your grandfather. It's like something in the chain of title of a piece of property. You go back generations and find out you're no longer a citizen.

We believe on a clean slate principle. So that miraculously, in some sense, every new - whatever questions there are about the legitimacy of parents or grandparents, in our country you get a clean slate. Every new child who is born here is simply and indisputably an American. And that is part of our almost unique national identity.

CONAN: There's also this concept of citizenship by consent. And if you go back to the War of 1812, part of the issue - one of the issues in that conflict was British naval vessels stopping American ships and saying, You, Seaman Jones, you are a British subject and you have to come and serve on our ship and we're taking you, and Seaman Jones saying, Maybe I used to be, but I'm an American now.

Mr. DELLINGER: Right. Right. Well, thats right. You can't even avoid being a citizen if you're born here. Its very hard to actually renounce, to renounce citizenship. But I think through the waves of immigration we've had in these countries - when the Anglo-Saxons came, when the Germans came, when German Jews came in the 1830s, when Eastern Europeans came after the turn of the century, now people from Latin America and Central America - through all those waves of immigration, we had this wonderful fact that children born here are indisputably legitimate and you never look back. And you never have to question whether there's consent, what your bloodlines are. That may work in other countries, but we like the simple objective - objective fact.

CONAN: Now, in Arizona there's been some thought of a state law - this was of course the state which got into all the controversy and is now in federal court over the demand that - requirement that police officers in the process of their business require proof of citizenship. But the - Arizona could pass a law that says children of illegal immigrants are also illegal, denied citizenship. Obviously if that happened, if the governor signed it, if it pass the legislature, it would presumably end up back in federal court.

Mr. DELLINGER: Yes, but it would be a very short trip because the Constitution, the 14th Amendment, says all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state in which they reside. So neither Arizona nor any other state can purport to take citizenship away from residents there who are made citizens by virtue of the 14th Amendment.

CONAN: And then there is the move by some in Congress - and we've heard from Senator Lindsey Graham, the Republican of South Carolina, a moderate Republican in the way we define that these days, who says this ought to come up, we'll hold hearings on this in the Senate Judiciary Committee and consider amending the Constitution.

Mr. DELLINGER: You know, I think there are a couple of reasons against that. One, of course, is that it's a good rule that has served us well for 200 years. And amending the Constitution is an awfully large way to deal with whether they - a small part of the immigration problem. We may need immigration reform but dealing with this - with children who are born here - is not the way you do it. But there's also, Neal, the whole issue of raising a constitutional amendment. You know, if you brought to the floor of the Senate an amendment that would change Section 1 of the 14th Amendment, there are going to be people on the floor who want to do other things as well. They're going to want to say that let's make sure that it now says that corporations are not persons...

CONAN: Mm-hmm.

Mr. DELLINGER: ...with rights under the 14th Amendment. Other people are going to want to say that fetuses are persons under the 14th Amendment. So I think you would have corporate speech issues, abortion issues, everybody. Once you opened up the 14th Amendment to revision, there's no telling where it would go.

CONAN: Well, the 14th and any other amendment, very difficult to amend.

Mr. DELLINGER: Yes.

CONAN: Obviously, you need three quarters...

Mr. DELLINGER: Well it takes a two-thirds vote in each house of Congress, and then ratification by three-fourths of the states.

CONAN: Correct. There is also, seemingly, some people say, a loophole in the 14th Amendment which provides that some children born in the United States would not become citizens. And as I understand it, it was designed for the children of foreign diplomats and people like that.

Mr. DELLINGER: Right. There's at least one professor, quite excellent professor, Peter Schuck from Yale, I think he is unique in thinking that Congress could alter this by statute without changing the 14th Amendment by, in his term, re-interpreting the phrase, subject to the jurisdiction thereof - so that it would exclude not only children of diplomats but also children of unlawful immigrants, which has never been its meaning before. And then you could - he would propose - his latest proposal is if children could apply for citizenship when they're 10-years-old, if they're born here.

CONAN: Well, Britain changed its law. It used to be if you were born in Britain, you were a British subject. They changed that law in, I guess, about 1979, 1980, something like that, to give preference to those who are born in the country, but only after you'd spent I think ten uninterrupted years inside the country.

Mr. DELLINGER: Right, right. And you see that each of those things leads to argument. Did you really spend ten uninterrupted years? Did you leave the country? Our rule is very simple, very bright line and it's essentially a clean slate rule.

CONAN: As you look, though, at the rest of the world, only the United States and Canada. Can you say well, times have changed? These are not the open -Ellis Island is not open as it used to be?

Mr. DELLINGER: Well, I think that's certainly right, that this is an issue of children born here, who are born of illegal aliens, is an issue that was not that relevant at the time the 14th Amendment was adopted after the Civil War, at our founding. And that's why other countries have changed. But we do have our own unique history. What people were concerned about at the time of the Civil War was whether Chinese persons would be allowed to become citizens -Mongolians, gypsies, there were all these scarce...

CONAN: Uh-huh.

Mr. DELLINGER: But the sponsors said yes, if they're born here, they will all become citizens.

CONAN: Walter Dellinger, thank you very much for coming in to talk to us about the legal aspects of the 14th Amendment and its application to citizens, children born in this country. Walter Dellinger served as associate attorney general...

Mr. DELLINGER: Assistant attorney general.

CONAN: And acting solicitor general during the Clinton administration, now a partner at O'Melveny & Myers, here in Washington, D.C. When we come back, we're going to be reading from various op-ed pieces on either side, well more than one - two sides of this issue. We'd like to hear from you as well. Give us a call, 800-989-8255. Email us: talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan, in Washington. We're talking about the debate over so-called Anchor Babies and the recent demands to rethink the 14th Amendment's citizenship clause. We've heard the legal issues involved in the discussion, and now, the debate itself. We'll read from a number of opinion pieces that weigh in on various sides of the divide. It's time to hear your opinions as well. Where are you on this debate? 800-989-8255. Email us: talk@npr.org. And why dont we begin with Daniel, Daniel with us from San Antonio.

DANIEL (Caller): Yeah. My comment is about how the Pledge of Allegiance is being ignored in this debate. Because you have kids being, not just born here, but coming over here, growing up illegally and they go to our schools every day. And they put their hands on their heart and they pledge allegiance to a flag, to a flag that's not even theirs. So how are they not American? That's my question. They are no different than us. And I'm fearing that if they do manage to succeed to get rid of the birth clause, that they're going to create a class of citizens and they are the ones that do the dirty work. And we're not the only ones having this problem. Israel is having this problem as well, with the guest workers there having children and they're growing up Israeli.

CONAN: By pledging allegiance to the flag, though, you say that in addition to the fact that they were born here, they are American citizens?

DANIEL: Yeah. Because I know some people, here in San Antonio there's like two students that graduated at the top of their class. One went to a local university and the other went to Harvard. And they grew up illegally. And my question is to the point, how are the not American?

CONAN: Okay, Daniel, thanks for much for your call, appreciate it. Here's an editorial on behalf of - Senator Lindsey Graham, rather, speaking on Fox News: said the birthright citizenship should not be applied to babies born in the United States to illegal immigrants.

I'm looking at the law that exist and see if it makes sense today, Senator Graham said. Birthright citizenship doesnt make so much sense when you understand the world as it is. You've got the other problem where thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so the child will become an American citizen, and they broke the law to get here, he said. We ought to have a logical discussion. Is this the way to award American citizenship? Sell it to somebody's rich, reward somebody who breaks the law? I think we need to look at it really closely.

So we go next to Karen. Karen's with us from Tucson.

KAREN (Caller): Hi, thank you for taking my call.

CONAN: Sure.

KAREN: Hi, I'm a mother/baby nurse in Tucson and I've worked in this field for over 20 years, so I've cared for many of these women and infants. And first I want to say is that I learned to speak Spanish so I can provide the best care for these mothers and infants.

They are a financial strain on our medical community, as well the other resources in our community. But I dont blame them; I blame our government. I think they - you know, it's allowed. They come over here and we're allowing it, just like, you know, they say only Canada and the United States allow this and everybody else does not. So that's pretty much my comment on that.

CONAN: In your experience, do you find these women - obviously you're near the border there. Do they come across, especially to have children? Come across when they're pregnant?

KAREN: They come across to go shopping and they are nine months pregnant, knowing full well they're probably going to deliver any day. And they wind up in our hospitals here in the community, yes.

CONAN: Oh, so they come across on a tourist visa to go shopping and then...

KAREN: Yes, or maybe illegally.

CONAN: Okay.

KAREN: They're not residents. You know, they're illegal immigrants.

CONAN: All right, Karen, thanks very much. Appreciate it.

An estimated 340,000 of the 4.3 million babies born in the United States in 2008 were the offspring of unauthorized immigrants, according to a new analysis of Census Bureau data by the Pew Hispanic Center.

Unauthorized immigrants comprise slightly more than four percent of the adult population of the US. But because they are relatively young and have high birth rates, their children make up a much larger share of both the newborn population, eight percent, and the child population, seven percent of those younger than age 18 in this country.

The new Pew Hispanic analysis finds that nearly four in five, 79 percent of the 5.1 million children younger than 18 of unauthorized immigrants were born in this country and are, therefore, U.S. citizens. Let's see if we go next to -this is Louise, Louise in Vallejo, California.

LOUISE: Hello. Why does the Congress not pass a law that those baby citizens cannot bring in other family members until they are 18?

CONAN: Walter Dellinger, who we were speaking with in the last segment, is still with us. So Walter Dellinger, I wonder if you could advise us on that? The idea is that if an American citizen, whether a baby or not, its parents ought to be able to provide it support.

Mr. DELLINGER: Well, the caller is right, Neal. Congress clearly has the power to provide that. The fact that a child is born here as a baby and becomes a citizen, does not entitle the parents or siblings to come into the country illegally or to remain in the country legally. I'm not sure what the present status of it is now, but I know it's certainly not, by no means, is it automatically the case that if a child is born here as a citizen that their parents are allowed to remain here or be citizens. But that is entirely within the control...

CONAN: Of Congress.

Mr. DELLINGER: Of Congress.

CONAN: So they could pass such a law. And indeed, the issue came up in the context of raids at various, I think, meat packing plants and other places where they found undocumented workers and they were to be deported back to their home country. The fact that they'd had children in this country who were American citizens and then - who get stranded where?

Mr. DELLINGER: Right. That is a problem. One of the questions is what a child who is a citizen is not deportable. The parents are, and that does present a social dilemma.

CONAN: All right, Louise, thanks very much for the phone call. Appreciate it.

LOUISE: Okay, bye.

CONAN: Bye-bye. Here's another editorial. This from the Washington Post which said, The necessary debate on illegal immigration has been hijacked by a fight over birthright citizenship that is a wasteful diversion. What is needed is not vitriol but serious legislation that provides a path to citizenship to those who have been in the country illegally but have been otherwise law-abiding, productive members of society.

Last week's passage of a bill to beef up border security is a welcome step, but efforts to staunch illegal immigration should also include sanctions for employers who hire illegal workers and a reliable system for businesses to verify the status of potential employees. Changing the constitution should not be part of the solution.

The 14th Amendment was crafted after the Supreme Court issued a notoriously bad decision in which it concluded that freed slaves and their U.S. born children were not citizens. Since then, the amendment has been read broadly to bestow the privileges and responsibilities of citizenship on all of those born on U.S. soil, regardless of the race, faith, economic circumstances or illegal status of their parents, and rightly so, the Washington Post editorialized. This country of immigrants should not now turn its back on this noble legacy.

Let's go next to David, David with us from Minneapolis.

DAVID (Caller): Hi, thanks for taking my call.

CONAN: Sure.

DAVID: First, I mean, the editorial you just read said a lot of what I wanted to say, much better than I could have I think. But our immigration policy and citizenship policy, through much of our history has been something we could be proud of. And even though it's been opposed so many times, you know, efforts to deny Irish, Italians, all these different nationalities citizenship. But through that our equal protection under the law has been something to be very proud of.

And I think this idea to undo the 14th Amendment which is one of the very most fundamental amendments to our constitution, I think it's despicable, especially considering that most illegal immigrants working in this country are paying into our social services and not getting any back. And the idea that children born here would be stripped of their citizenship so that they can't get any benefits, even those that their parents worked for, I think it's despicable and I see it as a human rights issue.

CONAN: Well, you said they pay into social services and dont get anything back. A lot of the...

DAVID: Many illegal immigrants...

CONAN: I understand what you're saying. We just heard from a nurse who said to the contrary, these people come and get, basically, free health care, which they dont pay for, and isn't that a social service?

DAVID: Well, I mean no one is going to be turning them down health care and that's true, and that's good. Thats the right thing to do. But if these people have forged papers or forged identities, they're getting taxes taken out of their paychecks. They're getting - they're paying into these things and not getting them back in any legal form.

CONAN: But they are getting them back in some forms.

DAVID: Well, in the form of emergency medical care, but should that be the least that we provide to them?

CONAN: David, thanks very much. Appreciate it.

DAVID: Thank you.

CONAN: Here's Senator Jon Kyl on Face the Nation where he said, kids of illegal immigrants should not be considered citizens. He favors hearings that include constitutional experts to determine the state of the law. The 14th Amendment has been interpreted to provide that if you are born in the United States, you are a citizen no matter what, Senator Kyl said. So the question is, if both parents are here illegally, should there be a reward for their illegal behavior?

And let's see if we can go next to Joe. And Joe's with us from San Angelo in Texas.

JOE (Caller): Hi. Good afternoon. First, make clear, I'm American of Hispanic descent. And I still believe that the parents come here, they create a crime and they shouldn't be rewarded for that crime. Their children are illegal.

CONAN: Should their children be punished for their crime?

JOE: They're illegal, you know. I mean, if you rob a bank - hey, if you rob a bank, that's a crime. If you buy something with that money, such as a car, it's - it'd be taken away, you know, because it - you bought it with that money. They shouldn't be rewarded for committing a crime, for coming to the U.S. illegally.

CONAN: Well, how do the parents get rewarded by the fact that their child is a citizen in the United States?

JOE: Well, the child eventually will probably try to petition the parents later on in the time, and the parents get free medical, free welfare and all that from that child.

CONAN: All right, Joe. Thanks very much for the call. Appreciate it.

JOE: Thank you.

CONAN: Bye-bye. Here's an op-ed by Bill Simpson of New York who writes in the New York Times - Bill Sampson, excuse me - says changing the amendment will only fracture relations with those across the border. Why do Republicans want to make even our closest neighbors hate us? They are so patronizing to every other nation in the world. Do they want a controversy with everyone on the planet so that federal government can do nothing at all except buy fences and armaments? Is that really where want to go? For a party that often likes to cynically cloak itself in Christian values in order to get votes, they are really quite dishonest and mean-spirited. Shame, shame, shame.

Again, it's important to point out that there are some Democrats who feel this way and there are plenty of Republicans who feel that it's a bad idea to repeal or alter the 14th Amendment.

Let's go next to Mauricio(ph), Mauricio in Stony Brook in New York.

MAURICIO (Caller): Hi. Thanks for taking my call.

CONAN: Go ahead, please.

MAURICIO: I was wondering if there's any retroactive parts to this bill, so what if - you know, you're here. Now you're a citizen but maybe your grandparents were illegal aliens.

(Soundbite of laughter)

MAURICIO: I mean, it seems like if you go back a couple of generations for a lot of people, you know, you might not have some legality in there. It just seems very strange.

CONAN: Walter Dellinger, let me ask you about that. Could Congress, in the event that there was an amendment to change the 14th Amendment, make it retroactive?

Mr. DELLINGER: Well, if you're going to amend the Constitution, you could do most anything. That would be a real horror to go back and find out that someone who is a third, fourth generation American, that there was illegality in the background. One of the advantages of childbirth citizenship is - on the soil birth citizenship - is it eliminates all such controversy.

There's a similar point to be made though, Neal, which is if you got rid of citizenship by birth in the U.S., a lot of those people who were born here and not citizens would remain and have children, and they would have children so that you would be creating an ongoing caste system of generations, none of whom born - generations born here, none of whom going forward would be citizens unless you, by legislation, chose to make some of them citizens.

CONAN: And not merely not citizens of the United States, not citizens of anywhere. They'd be stateless.

Mr. DELLINGER: That's correct. That's correct.

CONAN: We're talking about the controversy over the 14th Amendment, immigration and so-called anchor babies.

You're listening to TALK OF THE NATION coming to you from NPR News.

And here's a quote from the Daily Kos, quoting Glenn Beck: The 14th Amendment granted citizenship to all persons born or naturalized in the United States to protect newly freed slaves and their children and guarantee their rights as citizens. And last time I checked, I don't think we're having that problem anymore.

Here's an editorial opposed to the repeal of the 14th Amendment. Steve Chapman in the Chicago Tribune says women of childbearing years are among those crossing into the U.S. Why are all these undocumented foreigners producing offspring on U.S. soil if not because of birthright citizenship? Some obvious explanations: because they live here, and because they tend to be of childbearing age, since older folks are less likely to trek through the desert for the privilege of harvesting watermelons.

But the chief reason is that having kids is what human beings do, wherever they are and whatever their immigration status. The odd thing would be if these newcomers were not reproducing.

Changing the citizenship rule would have little or no effect on the fertility of illegal immigrants. If we want to head them off, we don't have to amend the Constitution. We can just deny tourist visas to visibly pregnant women, or make it a federal offense to come here solely to have a baby.

But what's the fun in addressing a modest problem with a minor change? Anti-immigration zealots would much rather mount a heroic expedition to conquer a mighty mountain, even if it's really a molehill.

And let's go next to Kelly(ph). Kelly's on the line from Petaluma in California.

KELLY (Caller): Hello. My point that I wanted to make is that anchor baby is a misnomer. A child born in the United States confers no right to citizenships to their parents whatsoever. So to say that the anchor baby is somehow giving those parents rights is misleading. They do not.

CONAN: They do not per se, but can that child not petition the government to allow its parents or siblings?

KELLY: Yes, when they are an adult. So you're talking about something that will take place 18 years after they are born. And to me, if you're going to start tweaking the constitutional amendments and doing things to how you like, you're opening up a floodgate to change things like the Second Amendment right to bear arms. You should leave those things alone.

And I think that a lot of congressmen and senators are afraid because they realize that there's a growing Latin American population. And then once these children do become adults, they will have the right to vote and they could vote people who say that they shouldn't have citizenship out of office. That's my two cents.

CONAN: Kelly, thanks very much for the contribution. Here's an email from Sisheer(ph) in Minneapolis. My understanding is that illegal immigrants who have children here can still be deported along with the minor children. The children can return once they're 21 but need to apply to the State Department. Is that correct? Walter Dellinger, do you know?

Mr. DELLINGER: You know, I don't know. I thought that they were, that they were citizens and could come in at any time. But I can't say that authoritatively, Neal.

CONAN: Let's see if we can get Frank on the line, Frank with us from Akron in Ohio.

FRANK (Caller): Hi.

CONAN: Go ahead, Frank.

FRANK: We have some controversial information here. People born in Mexico from the United States are Mexicans. (Spanish spoken) Every person born in Mexico is, by the fact, Mexican. So that plus many years of being in California and Texas and dealing with the Mexican-American immigrants, I'd say we need to stay with what we have. And I'm covered by the 14th Amendment in 1864.

CONAN: Frank, thanks very much. 1868, I think. But anyway, thanks very much. Let's see if we could squeeze in a couple of more emails. This from Kent in La Grande, Oregon: If the 14th Amendment is appealed, would people who have only one parent in the U.S. be a half citizen? All right. And this from Robin in Oakland: The idea of a pregnant mother braving the potential fatal trip through the desert in order to give birth to a citizen is completely implausible. It's my understanding that citizen newborns cannot bring their families in as legal residence until they're 21. That implies a lot of long-term planning on the part of the family. What it really sounds like is Republicans trying to stir up race-based hatred in order to try to win some more seats in November.

Well, as we heard, obviously, people can come in pregnant on a tourist visa and accomplish much the same thing without the trek through the desert. But in any case, thanks to all of you who emailed and called. We appreciate it. Sorry we couldn't get to more of your messages. And Walter Dellinger, again, we thank you for your time. Walter Dellinger, now a partner with O'Melveny & Myers here in Washington D.C.

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