The Republican ultra right is launching a multi-pronged attack on immigrants and their families:

  • Representative Lamar Smith, R-Texas and Chair of the House Judiciary Committee, has announced hearings on what Republicans claim is weak enforcement of U.S. immigration laws by the Obama administration. They will be inquiring into the use of E-Verify, a system whereby employers tap into a federal database to check on the work eligibility of potential employees. In fact, the Obama administration supports this system, even though immigrants’ rights activists have denounced it.
  • Republican state legislators from several states, calling themselves “State Legislators for Legal Immigration,” held a press conference on January 5, in which they announced coordinated multi-state initiatives to strip the children born in the United States to undocumented immigrant parents of their citizenship. The legislators also said they plan to form a compact between several states which they assert can be approved by Congress without a presidential signature. This compact would allow states to issue different birth certificates for children of undocumented immigrants. Presumably the states would then seek deny services to the former.
  • Representative Steve King, R-Iowa, has introduced legislation in the House of Representatives, HR 140, which would have the effect of “reinterpreting” the 14th Amendment of the U.S. Constitution so as to exclude the children of undocumented immigrants from U.S. citizenship by amending section 301 of the Immigration and Nationality Act.

According to the first article of the 14th Amendment, the children born to undocumented immigrants in the United States are U.S. citizens. Each state must also consider them to be its own citizens, and is forbidden by the Constitution from discriminating against them, making all these bills unconstitutional. This interpretation was explicitly upheld by the Supreme Court in 1898.

The Republican right argues that the phrase “subject to the jurisdiction of” has been misinterpreted. It was originally intended, they say, to apply only to the recently freed slaves. In fact, the debates in Congress that led up to the ratification of the 14th Amendment clearly show that the only people who were considered not “subject to the jurisdiction” of the United States were diplomatic personnel (with their special exemptions from U.S., state and local laws) and members of Native American communities still living on tribal lands beyond government control. Immigrants with or without papers are definitely subject to every kind of U.S. law. If an undocumented immigrant parks in a no-parking zone, he or she has to pay the resulting fine. If the British ambassador does so, he or she does not.

The supporters of the state strategy say their purpose is to invite a court challenge to such laws, so as to get the issue of the meaning of “under the jurisdiction” in the 14th Amendment into federal court.

It seems likely that both the federal and state level efforts to change the meaning of the 14th Amendment would fail a constitutional test. And if federal law were changed in such a way, no child born in the United States could be considered a U.S. citizen unless their parents could prove their legal right to be in the country, which would bring Homeland Security into the delivery room, causing outrage.

The movement in favor of immigrants’ rights is mobilizing against these moves and to continue the struggle for progressive immigration reform. On January 5 a new coalition, “Americans for Constitutional Citizenship” was announced. This group, formed with the specific purpose of opposing the assault on the 14th Amendment, has been initiated by the Leadership Conference on Civil and Human Rights, the American Civil Liberties Union, the NAACP, the National Council of La Raza, American Immigration Lawyers’ Association, the Mexican American Legal Defense and Education Fund (MALDEF) and others.

Wade Henderson, president of the Leadership Conference, said: “The plain and unequivocal language of the 14th Amendment was meant to settle the question of what makes somebody a U.S. citizen and a citizen of each state, and it made clear that states can never again seek to create an underclass of Americans living among us”

The National Council of La Raza has launched a petition drive against the citizenship-stripping measures.


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.