Page 2 of 2   <      

Several states want court ruling on birthright citizenship

Proponents of the new strategy said they would adopt a two-pronged approach. The first is to introduce bills in state legislatures that revive the concept of "state citizenship." Only children with at least one parent who is a U.S. permanent resident or citizen would be granted state citizenship, though it wouldn't prevent the federal government from granting U.S. citizenship to the children of undocumented immigrants.

The second prong of the strategy involves a more direct challenge to the authority of the federal government by using what is known as a state compact to draw a distinction between the children of undocumented immigrants and those of legal permanent residents and U.S. citizens.

A compact is a legal term that describes a measure, passed by states, that requires congressional approval. If Congress approves a state compact, it can become federal law without requiring the signature of the president, said Kris Kobach, professor of law at the University of Missouri at Kansas City and the Kansas secretary of state-elect.

The states involved in the compact would issue different birth certificates to children of permanent residents and U.S. citizens from those of undocumented immigrants, tourists and foreign students. The birth certificates would draw a distinction between those children whose parents are "subject to the jurisdiction of the United States" - a phrase from the 14th Amendment - and other children whose parents are not.

Kobach and other proponents said that because undocumented immigrants are in the country illegally, they are not under the jurisdiction of the United States.

Effectively, states would be throwing down the gauntlet to Congress to deny citizenship to children who do not have at least one parent who is a permanent resident or a citizen.

Walter Dellinger, who was assistant attorney general and acting solicitor general in President Bill Clinton's administration, predicted that the Supreme Court would dismiss the challenge to the 14th Amendment because of past decisions that ruled children born in the United States were citizens.

In 1898, the Supreme Court ruled that children born to Chinese migrants - who were themselves barred by exclusionary racial laws from becoming citizens - were U.S. citizens since they were born on U.S. soil.

The clause in the 14th Amendment that restricted birthright citizenship to those "under the jurisdiction of the United States," he added, merely excluded the children of foreign diplomats from becoming citizens.

Repeated challenges to the 14th Amendment, several civil rights experts said, had questioned the legitimacy of African American, Chinese American and Japanese American citizens. Each time, the challenge was refuted.

"This matter has been raised in every instance in a racial context," Dellinger said. "That's why we wanted a simple rule: Every new girl or boy born in this country is simply, indisputably, an American." Staff writers Anita Kumar, Rosalind S. Helderman and John Wagner contributed to this report.

<       2

© 2011 The Washington Post Company