Our continuing efforts to thread our way between constitutional rights and illegal immigration has produced many heartbreaking photographs … and at least one memorable moment of unintended comedy. It is a keystone cops-like news video of U.S. federal authorities splashing through the waves and shallows of a Florida beach to head off migrants before they reached the beach.
At the time, our immigration laws were being interpreted to produce the infamous wet foot-dry foot policy. It meant that if a boat full of Cuban refugees were intercepted in U.S. waters they would be returned to Cuba. If they set foot on land, they could stay here.
An interception in coastal waters within sight of land sometimes produced mayhem, a circus of people jumping overboard and attempting to swim ashore — sometimes leading to comedic chases through the surf and shallows.
The policy was ended in 2017, but the immigration problem is still with us, and portends to worsen.
The caravan of migrants headed for the U.S. border from Central America is just one aspect of the immigration issue, but it is revealing questions and issues that we, as a nation, have been dodging for years and have to address.
One of those questions is a straightforward one: What is citizenship?
We would think that a country like ours, born in its revolution, creating a country out of colonies, and distinguishing patriot from Tory would have been very conscious of citizenship. We would expect that the founders would have taken particular care to define it legally in our Constitution, but this is not really the case. While the word turns up in Article 1, it remained — and still remains to some extent — loosely defined.
One of the few durable ideas embodied in our definition of citizenship is the so-called “birthright.” If you are born in the U.S., you are automatically a citizen. This idea is so deeply rooted that many of us were surprised when President Donald Trump announced that he was considering a rule change that would place limits on birthright citizenship.
Essentially, the president is trying to end the practice called “birth tourism,” which entails timing a visit, legal or illegal, to the U.S. to coincide with a baby’s birth so that he or she would have the option of choosing American citizenship. He is also trying to end automatic citizenship to children born in the U.S. to immigrants here illegally. The costs of delivering the babies of illegal immigrants is substantial, with estimates exceeding $2 billion per year.
The president’s idea was immediately denounced as being unconstitutional, but that isn’t clear, according to some legal analysts.
It would seem clear enough. The 14th Amendment’s very first words are, “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.” Still, legal scholars, some very distinguished, tell us that the constitutionality of birthright citizenship doesn’t rely on the 14th Amendment — due to the words, “subject to the jurisdiction thereof.” Instead, it relies on the shakier ground of two Supreme Court decisions — neither of which had citizenship issues at their center.
Outsourcing the problem to the Supreme Court, however, is a congressional cop-out. The Constitution assigns responsibility for citizenship rules to the Congress, even though lawmakers have repeatedly dodged it.
Both the citizenship and the immigration problems are likely to worsen. Illegal immigration is driven by fear, poverty, corruption, and starvation and the experts tell us that these are likely to become more widespread.
They create a level of desperation where the only hope is that somewhere else things would be better.
The right answer to these problems is not apparent, but we do know one wrong one: the open borders idea. Europe was justly proud of its open borders policy but when put to the test by large migrations from troubled countries, it failed. Less noticed was the abandonment of an unrestricted birthright citizenship policy which now not a single European country maintains.
While we search for a global answer to the famine, corruption and violence that underlie the migration issue, we should clarify our fundamentals of citizenship, birthright and border security.
Congress needs to address these fundamentals before they become obstacles to rational border security and controlled immigration. We cannot continue to enjoy the Kabuki theater of considering only a “comprehensive” immigration policy. That has become a smoke screen for “do nothing.”
James McCusker is a Bothell economist, educator and consultant.
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