[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
BIRTHRIGHT CITIZENSHIP: IS IT THE RIGHT
POLICY FOR AMERICA?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 29, 2015
__________
Serial No. 114-21
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Immigration and Border Security
TREY GOWDY, South Carolina, Chairman
RAUL LABRADOR, Idaho, Vice-Chairman
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
KEN BUCK, Colorado SHEILA JACKSON LEE, Texas
JOHN RATCLIFFE, Texas PEDRO R. PIERLUISI, Puerto Rico
DAVE TROTT, Michigan
George Fishman, Chief Counsel
Tom Jawetz, Minority Counsel
C O N T E N T S
----------
APRIL 29, 2015
Page
OPENING STATEMENTS
The Honorable Trey Gowdy, a Representative in Congress from the
State of South Carolina, and Chairman, Subcommittee on
Immigration and Border Security................................ 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Member, Subcommittee on Immigration and
Border Security................................................ 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration and Border Security................................ 3
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 5
WITNESSES
John C. Eastman, Ph.D., Founding Director, The Claremont
Institute's Center for Constitutional Jurisprudence
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Lino A. Graglia, A. W. Walker Centennial Chair in Law, University
of Texas School of Law, testifying in his personal capacity
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Jon Feere, Legal Policy Analyst, Center for Immigration Studies
Oral Testimony................................................. 53
Prepared Statement............................................. 55
J. Richard Cohen, President, Southern Poverty Law Center
Oral Testimony................................................. 73
Prepared Statement............................................. 75
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 84
Additional Material submitted by the Honorable Zoe Lofgren, a
Representative in Congress from the State of California, and
Ranking Member, Subcommittee on Immigration and Border Security 86
Material submitted by the Honorable Luis V. Gutierrez, a
Representative in Congress from the State of Illinois, and
Member, Subcommittee on Immigration and Border Security........ 94
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 106
Prepared Statement of the Honorable Steve King, a Representative
in Congress from the State of Iowa, and Member, Subcommittee on
Immigration and Border Security..........................115
deg.OFFICIAL HEARING RECORD
Unprinted Material Submitted for the Hearing Record
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 5
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=103384..................................
BIRTHRIGHT CITIZENSHIP: IS IT THE RIGHT POLICY FOR AMERICA?
----------
WEDNESDAY, APRIL 29, 2015
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 1:14 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trey
Gowdy (Chairman of the Subcommittee) presiding.
Present: Representatives Gowdy, Goodlatte, Labrador, Smith,
King, Buck, Ratcliffe, Trott, Lofgren, Gutierrez, and Jackson
Lee.
Staff Present: (Majority) George Fishman, Chief Counsel;
Andrea Loving, Deputy Chief Counsel; Graham Owens, Clerk; and
(Minority) Tom Jawetz, Minority Counsel.
Mr. Gowdy. The Subcommittee on Immigration and Border
Security. This is a hearing on ``Birthright Citizenship: Is It
the Right Policy for America?''
And I would say, at the outset, to my colleagues and to our
witnesses, I have a meeting that is going to regrettably take
me away. So, at some point, I am going to turn the gavel over,
but I want to thank you--because I won't be here at the end--
and thank you for participating in this and thank my colleagues
as well.
The Subcommittee on Immigration and Border Security will
come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
We welcome everyone. And the other administrative note is
we are expecting votes in the not too distant future, so we
will need to go vote, and then the Members that are able to do
so will then come back. And we apologize in advance for any
inconvenience, but there is no way to avoid that.
At this point, I will recognize myself for an opening
statement only to say that this is an interesting and important
topic.
And, with that, I will yield to the gentleman from Iowa,
Mr. King.
Mr. King. Thank you, Mr. Chairman.
I appreciate you yielding for the purposes of this opening
statement. And I would like to raise these points at the
beginning of this hearing, that this topic of birthright
citizenship is something that I have worked on for some time. I
want to give some credit to the now Governor of Georgia, Nathan
Deal, who used to be the one that was leading on this topic.
And when he went back to Georgia, somebody had to pick up the
ball and go with it. It is myself in the House primarily, with
a lot of colleagues working together. And also Senator Vitter
on the other side is the--is leading on a very similar bill
that I am speaking to and not exactly that--as a component of
the subject here that is before us.
And the 14th Amendment of the Constitution says that all
persons born in the United States and subject to the
jurisdiction thereof are citizens of the United States and the
State where they reside. And that little troublesome clause in
there, ``subject to the jurisdiction thereof,'' is the subject
of our discussion here in this--in this hearing today in that
and the policies that flow from it.
And for those who argue that the physical birth of a baby
on U.S. soil is an automatic grant of citizenship by policy, by
Constitution, by statute, I believe, are uttering an ungrounded
statement in that that clause, that troublesome clause of
``subject to the jurisdiction thereof'' defined it differently
for clear reasons.
And, that is, that if I look at the quotes from a number of
U.S. Senators who debated this topic back in 1865 and 1866--the
14th Amendment was ratified finally in 1868--the lead Senator
on this, one of the authors, Senator Jacob Howard said this:
This will not, of course, include persons born in the United
States who are foreigners or aliens, who belong to the families
of ambassadors or foreign ministers accredited to the
Government of the United States, but will include every other
class of persons.
And the purpose, of course, of the 14th Amendment was to
guarantee that the babies born to the freed slaves would be
citizens of the United States.
The specificity in the clause was debated fairly thoroughly
in the United States Congress, and it was there because there
were Native Americans, called Indians under this--under the
statute then and the amendments then, who would lose their
membership in the tribe if they were granted automatic
citizenship. So the clause was carefully targeted to make sure
that African American babies born in America were citizens,
just as those--just as those newly freed slaves were. They
became citizens under the 13th Amendment of the Constitution.
It.
Did not contemplate that anyone who could sneak into the
United States and have a baby would be conferred automatic
citizenship on that baby. That is a practice that has evolved,
not a law that has been passed, not a provision within the
Constitution anywhere, including in the 14th Amendment. So we
will get deeper into this definition of the ``subject to the
jurisdiction thereof.''
This will be, if this bill is passed and becomes law--I
don't think there is any doubt it will be litigated. I look
forward to that litigation. I think an objective court that
would review the documents that build to this point has to
conclude the same thing that I have.
This is also something that flows from the Dred Scott
decision that said that African Americans could never be
citizens in the United States. That is the biggest reason
that--well, it is one of the two big reasons for the Civil war.
It is still debatable as to which is the biggest reason, I
might point out. But it is the reason for the 13th Amendment
and the 14th Amendment to correct Dred Scott. And so it
corrected it, and then we started this practice, so--and to
protect Native Americans.
So the illegal parents, are they going to decide, or are we
going to decide as representatives of the people of the United
States of America? And I suggest that it is our job here as
Congress to decide who will be citizens, not someone in a
foreign country that can sneak into the United States and have
a baby and then go home with a birth certificate.
By the way, birthright--birth tourism has grown
substantially. We had a hearing on this some years ago. The
turnkey price for a Chinese pregnant woman to fly to the United
States and check into a hotel, go through the maternity
process, have a baby, get the birth certificate, take the baby
back to China was $30,000 in that testimony several years ago,
that price has gone up to $40,000 to $80,000. However, they
still attest that they can't pay for their medical bills. And
so we, the taxpayers, fund that.
Also, the numbers of birth tourism were then 700 and--
340,000 to 750,000. That is my recollection from that
testimony. And today, I think, we are going to hear maybe
300,000 to 400,000 babies born automatically in America.
There is a lot of data to flow out here. The objective
thing for us to do is set the policy like almost every other
industrialized country in the world has done. I encourage that
we do that.
I thank the Chairman. I yield back the balance of my time.
Mr. Gowdy. Thank the gentleman from Iowa.
The Chair would now recognize the gentlelady from
California, Ms. Lofgren, for her opening statement.
Ms. Lofgren. Thank you, Mr. Chairman.
Earlier this month, the House Committee on Science, Space,
and Technology, where I also serve, held a hearing to cast
doubt on global warming science. Never mind the overwhelming
consensus in the scientific community that humans are
contributing to climate change. Never mind the evidence that
rapidly increasing greenhouse gas emissions are disrupting life
all over the world. Rather than working to develop and support
innovative methods of combatting climate change, the Science
Committee held another hearing to debate whether established
science is real.
I can't help but think that today's hearing is a similarly
fruitless effort. The question that we are asked to consider is
whether birthright citizenship is the right policy for America.
I think the answer is clearly yes and that, in fact, no other
policy would be worthy of this country.
The origins of birthright citizenship long predate the 14th
Amendment. Supreme Court Justice Joseph Story said early on
that, ``Nothing is better settled at common law than the
doctrine of jus soli or citizenship by place of birth.''
The Supreme Court once diverged from this principle in the
infamous Dred Scott decision when it denied birthright
citizenship to the descendants of slaves. The violent
institution of slavery itself was clearly an incredible
injustice. In Dred Scott, the Supreme Court found a way to
continue that injustice to reinforce the caste system at the
heart of slavery, even with respect to children born in this
country to freed slaves.
There is no question that the 14th Amendment was adopted
and the citizenship clause was included as the very first
sentence of that amendment to repudiate Dred Scott and to help
us turn the corner of an ugly chapter in our Nation's history.
But the clause did not simply say, as it could have, that
children born in this country to freed slaves are citizens of
this country. Rather, the Framers of the 14th Amendment spoke
in general terms, guaranteeing that, ``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.''
From the debate in Congress at the time, it is clear that
they understood this language to have much broader reach. It is
also clear that members were motivated to embed this language
in the Constitution precisely because the constitutional right
of citizenship would be protected from the caprice of Congress
and the prejudices of the day.
Thirty years after the 14th Amendment was ratified, the
Supreme Court had occasion to consider whether a child born in
this country to Chinese immigrants, who were by law prohibited
from naturalizing, was entitled to birthright citizenship. The
Supreme Court answered the question in the affirmative with
sweeping language that is worth quoting. The court held, ``The
14th Amendment affirms the ancient and fundamental rule of
citizenship by birth within the territory in the allegiance and
under the protection of the country, including all children
here born of resident aliens, with the exceptions or
qualifications as old as the rule itself of children of foreign
sovereigns or their ministers, or born on foreign public ships,
or of the enemies within and during a hostile occupation of
part of our territory, and with the single additional exception
of children of members of Indian tribes owing direct allegiance
to their several tribes.''
A minority view, among legal scholars, holds that Wong Kim
Ark speaks only to children of legally present immigrants. The
language in the case certainly does not suggest that additional
exceptions or qualifications to the fundamental rule of
birthright citizenship would apply to children of undocumented
immigrants born in this country.
But even if that were true, the Supreme Court in the 1982
case of Plyler v. Doe settled the question. In Plyler, the
Court explained that the phrase ``subject to the jurisdiction''
in the citizenship clause applies as comprehensively as the
phrase ``within its jurisdiction'' in the equal protection
clause and that no plausible distinction with respect to 14th
Amendment jurisdiction can be drawn between resident aliens
whose entry into the United States was lawful and resident
aliens whose entry was unlawful.
So if there really isn't a serious debate among scholars
about what the clause means, is the purpose of this hearing
really to consider whether the citizenship clause of the 14th
Amendment adopted in the aftermath of the Civil War has
outlived its usefulness? Can we expect the full Committee to
soon take up the question of whether the equal protection
clause guarantees too much equality?
In preparing for this hearing, I thought about the
Republican Party's history as the party of Lincoln. On the
GOP's own Web site, there is a history of the party that
proudly marks January 13, 1866, as the day that the 14th
Amendment was passed by Congress, ``with unanimous Republican
support and against intense Democratic opposition.''
And yet the question we are asked to consider today is
whether the passage of the 14th Amendment and the citizenship
clause almost 150 years ago was good policy for America.
It is no wonder that when this issue flared up last in 2010
and congressional Republicans voiced their support for
legislation and a constitutional amendment to restrict
birthright citizenship, prominent Republicans like Mark
McKinnon cautioned that, ``The 14th Amendment is a great legacy
of the Republican Party; it is a shame and an embarrassment
that the GOP now wants to amend it for starkly political
reasons.''
Republican leaders in the Senate narrowly avoided debate on
this topic just last week when they prevented Senator Vitter
from offering a birthright citizenship amendment to a bill on
human trafficking. I cannot imagine the Republican leaders in
the House are any more interested in bringing this issue to the
floor. Actually, it has been 10 years since this Subcommittee
last held a hearing on this topic, and I note that one of our
witnesses, Professor Eastman, testified before us at that time.
Hopefully, all of that means is this will be the last we hear
of this issue for quite some time.
And, with that, Mr. Chairman, I would like to ask unanimous
consent to place in the record a testimony from the Community
Relations Council of the Jewish Federation of Silicon Valley as
well as statements from the Leadership Conference on Civil and
Human Rights; the American Civil Liberties Union; First Focus
Campaign for Children; the National Association of Latino
Elected and Appointed Officials; the League of United Latin
American Citizens; the Constitutional Accountability Center;
Church World Service; Lutheran Immigration and Refugee
Services; American Immigration Council; a sign-on letter from
14 national Jewish organizations; the Jewish Council for Public
Affairs; Franciscan Action Network; Asian Americans Advancing
Justice; American Immigration Lawyers Association; National
Council of Asian-Pacific Americans; the National Latina
Institute for Reproductive Health; the National Immigration
Forum; We Belong Together; the Coalition for Humane Immigrant
Rights of Los Angeles; and OCA, the Asian-Pacific American
advocate.
[Note: The submitted material is not printed in this hearing record
but is on file with the Subcommittee, and may also be accessed at:
http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=103384.]
Mr. Gowdy. Without objection.
Thank you, gentlelady.
The Chair will now recognize the gentleman from Virginia,
the Chairman of the full Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
I rarely have a conversation about general immigration
policy in which the issue of birthright citizenship is not
raised, yet it has been several years--nearly 10, I believe--
since this Subcommittee has looked at the issue. So I thank the
gentleman from South Carolina for holding this hearing.
The discussion is important as we move forward with any
reforms to immigration law and policy. Birthright citizenship
is the principle that the place of an individual's birth
automatically determines that individual's citizenship.
The U.S. policy on birthright citizenship stems from the
14th Amendment to the U.S. Constitution, of which the
citizenship clause states that: All persons born or naturalized
in the United States and subject to the jurisdiction thereof
are citizens of the United States.
Congress subsequently included that language in the
statute.
However, as we will hear today, the phrase ``subject to the
jurisdiction thereof'' is central to the debate over whether
the U.S. Constitution requires that the U.S. adhere to
birthright citizenship. It is central to the question of
whether the U.S.-born children of unlawful aliens should be
considered citizens at birth.
A close look at and discussion of the legislative history
of the 14th Amendment, the language of the Civil Rights Act of
1866, and relevant case law, like Elk v. Wilkins and United
States v. Wong Kim Ark, are central to the determining the
meaning of ``subject to the jurisdiction thereof.''
The question of whether our forefathers meant for
birthright citizenship in all circumstances to be the law of
the land is far from settled. In any event, we must still
determine if it is the right policy for America today.
Very few countries with advanced economies have a policy of
birthright citizenship. In fact, of the G20 countries, only the
United States, Canada, and Mexico automatically grant
citizenship based on the individual being born in the country,
despite the citizenship or immigration status of the parents.
That is not to say that just because other countries do not
have a certain policy or law, the U.S. should not have that
policy or law. But, as Members of Congress, we should have an
open and honest discussion about the consequences of automatic
birthright citizenship.
Evidence suggests that automatic birthright citizenship
incentivizes illegal immigration and abuse of U.S. immigration
law and policy. And extremely troubling is the rise of the
birth tourism phenomenon in which pregnant women from foreign
countries briefly come to the U.S. Specifically to give birth
here so that their children become U.S. citizens. The women and
children then return to their home countries. This is becoming
a multimillion dollar business in certain areas of the U.S.
where maternity hotels advertise in foreign countries to house
pregnant foreign nationals in the U.S. until they give birth.
Even if you believe that birthright citizenship is the right
policy for the United States--and I do not--but even if you do,
such abuse of our generous policy is unacceptable.
I look forward to the witness testimony and the discussion
of whether and how to change the U.S. birthright citizenship
policy.
And I yield back.
Thank you, Mr. Chairman.
Mr. Gowdy. The Chair thanks the gentleman from Virginia.
Without objection, other Members' opening statements will
be made part of the record.
We have a distinguished panel before us.
And I will begin by swearing you in, and then I will
introduce you en bloc and then recognize you individually.
So, if you would, please stand and raise your right hand.
Do you swear the testimony you are about to give is the truth,
the whole truth, and nothing but the truth so help you God?
May the record reflect all witnesses answered in the
affirmative.
We will start with Dr. John Eastman. He is the founding
director of the Constitutional Jurisprudence Clinic, a public
interest law firm affiliated with The Claremont Institute. He
also serves as the Henry Salvatori Professor of Law and
Community Service at Chapman University Fowler School of Law
and also served as the school's dean from 2007 to 2010. Prior
to joining the Fowler School of Law faculty, he served as a law
clerk for Justice Clarence Thomas at the United States Supreme
Court and Judge Michael Luttig of the United States Court of
Appeals in the Fourth Circuit. He earned his J.D. From the
University of Chicago Law School, where he graduated with high
honors.
Next after him will be Professor Lino Graglia--and if I
mispronounce anyone's name, forgive me. Professor Graglia
serves as the A.W. Walker Centennial Chair in Law at the
University of Texas at Austin School of Law. He has been a
visiting professor at the University of Virginia School of Law.
He has written widely on constitutional law, especially on the
judicial review, constitutional interpretation, race
discrimination, and affirmative action, and also teaches and
writes in the area of antitrust law. He received his J.D. And
LL.B. From Columbia University School of Law, where he served
as editor of the Law Review, and his B.S. In economics and
political science from the City College of New York.
After him will be Mr. Jon Feere. He currently serves as a
legal policy analyst for the Center for Immigration Studies.
His editorials have appeared in various publications, including
U.S. News & World Report and the Washington Times. He received
his B.A. In political science and communications from the
University of California Davis and his J.D. From America
Universities Washington College of Law. While in law school, he
worked on this very Subcommittee, which was then known as the
Subcommittee on Immigration, Border Security, and Claims.
And, finally, Mr. Richard Cohen, currently serves as the
president of Southern Poverty Law Center, where he has worked
since 1986 when he joined their staff as its legal director. In
this position, Mr. Cohen has litigated a wide variety of
important civil rights actions, defending the rights prisoners
to be treated humanely and working for equal educational
opportunities for all children. He is a graduate of Columbia
University and received his J.D. From the University of
Virginia School of Law.
Welcome to each of you. The lights mean the same thing they
mean traditionally in life. Green, go. Yellow, speed up. Red,
go ahead and conclude that thought if you would.
Dr. Eastman.
TESTIMONY OF JOHN C. EASTMAN, Ph.D., FOUNDING DIRECTOR, THE
CLAREMONT INSTITUTE'S CENTER FOR CONSTITUTIONAL JURISPRUDENCE
Mr. Eastman. Thank you, Mr. Chairman, and all the Members
of the Committee. And I am particularly delighted to be here
again. I worked closely with now Governor Deal when he was
here.
And I am so happy, Representative King, that you are taking
up the charge. I think this is an extremely important issue.
Congress has the power over naturalization. It is a plenary
power, and that means you get to set the policy of how large or
small, how understrained or restrained our restriction--our
immigration into this country is going to be. The Founders did
that by design because it is an inherently political question.
The question for us is, whether one of the three great
magnets to violating or ignoring the policy you set out can be
addressed by statute or whether it requires a constitutional
amendment. Those three magnets are, of course, an opportunity
for a job, employment; access to our huge welfare benefits; and
access to the Holy Grail of American citizenship.
Both members that talked about the Constitution's 14th
Amendment rightly focused on the phrase ``subject to the
jurisdiction.'' If that phrase is not to be entirely redundant,
it has to mean something other than being born on U.S. soil,
and that something is allegiance. And I think, if you look at
the debates in Congress, if you look at the language of the
1866 Civil Rights Act, if you look at the first couple of
Supreme Court cases to address this issue and the legal
commentators, including the most prominent one at the time,
Thomas Cooley, they all recognize that the ``subject to the
jurisdiction'' clause meant allegiance-owing.
There were two kinds of jurisdiction that was recognized in
international law at the time. One they called mere partial or
territorial. The other they called complete or whole
jurisdiction. And it is the latter that the 14th Amendment
refers to.
The best way I can describe this is to imagine a foreign
national, say, from Great Britain who comes to visit the United
States as a tourist. When he is here, he is subject to our
laws. He drives on the right side of the road rather than the
left side of the road as he does at home. But that does not
make him subject to our other jurisdiction. He doesn't become a
citizen. He doesn't participate in our political process. He
can't be tried for treason if he takes up arms against us,
although taking up arms would be subject him to other recourse.
It is that lack of allegiance that makes him not subject to the
jurisdiction in the full and complete sense that was envisioned
by the 14th Amendment.
And so, too, today there are people who are here lawfully
and permanently who we have recognized as having some extent of
allegiance to the United States. And their children will be
deemed automatic citizens by virtue of this 14th Amendment.
That was the holding and the full extent of the holding of the
Wong Kim Ark case in 1898.
Mr. Wong Kim Ark was a child of lawful permanent residents
in the United States who had done everything we allowed them to
do to demonstrate their allegiance to the United States. They
were not here on tourist visas. They were not here as temporary
sojourners, to use the language of the day. They were here
permanently, had taken up domicile as well as residence in the
United States.
And the language that Representative Lofgren quoted from
that case, there was a particular phrase in it that she said,
``in the allegiance'' of the United States, the Court held.
That meant it fit within the language of the 14th Amendment
in a way that temporary visitors here--temporary visitors who
may have come here legally and then overstayed their visa and
were now here illegally and certainly temporary visitors who
were never here legally in the first place, who never had been
granted the consent of the United States to be here, who owed
no allegiance to the United States and, in fact, continue to
owe allegiance to their home country--their children, through
them, owe allegiance to the home country, not to the United
States, and are, therefore, not subject to the jurisdiction in
that full sense.
That is not only what the Constitution sets out and
requires, but it is phenomenally good policy because,
otherwise, the fundamental break we made with the old feudal
system--that if you were born on the sovereign soil, you shall
forever more be a subject of that sovereign--the fundamental
break we made with that idea in the Declaration of Independence
is we form a body politic by mutual consent. If we are to
accept this newfound version of birthright citizenship, that no
matter how you get here, how little you have obtained consent
for being here, you can demand automatic citizenship, blows a
hole through that notion of consent of the governed. And until
we get back to the Declaration's understanding of consent that
is what creates citizens and what creates a people and a body
politic, you will never be able to have any limitations on our
immigration policy at all.
I think the various bills that have been proposed over the
years clarify that that constitutional language creates a
floor, and how far above that floor we want to go is a matter
of policy judgment for the Congress.
I would suggest one thing: We have, for the last 40 or 50
years, adopted the notion by piecemeal and by osmosis almost
that mere birth on U.S. soil is enough, and a lot of people
have come to rely on that. So you might say: Let's get this
fixed and clarified going forward, but for those people over
the last 50 years who have relied on it, let's grant them
citizenship as well retroactively, but let's make clear that
that grant of citizenship is pursuant to Congress'
naturalization powers, not because it is mandated by the 14th
Amendment.
And I think if you do that, you will put on--this body on
very clear record of what your understanding of the
constitutional floor is.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Eastman follows:]
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Mr. Gowdy. Thank you, Dr. Eastman.
Professor Graglia.
TESTIMONY OF LINO A. GRAGLIA, A. W. WALKER CENTENNIAL CHAIR IN
LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW, TESTIFYING IN HIS
PERSONAL CAPACITY
Mr. Graglia. Thank you for inviting me. I am glad to have
this opportunity to speak to this important question, though I
am not sure I can add much to what Professor Eastman's so very
thorough presentation did.
It is difficult to imagine a more irrational and self-
defeating legal system than one that makes unauthorized entry
into the country a criminal offense and simultaneously provides
the greatest possible inducement to illegal entry, a grant of
American citizenship. How could such a legal system have come
to be and be permitted to continue? The answer, its defenders
will tell you, is the Constitution.
As Robert Jackson said in response to such arguments, the
Constitution is not a suicide pact. The basis of the
constitutional claim of birthright citizenship is, of course,
the citizenship clause of the 14th Amendment, which has been
read many times. Not anyone born--not everyone born in the
United States, therefore, is automatically a citizen, only
those subject to the jurisdiction of the United States. So the
question becomes, what does that jurisdictional statement mean?
How should it be interpreted?
Like any writing or at least any law, it should be
interpreted to mean what it was intended to mean by those who
adopted it, the ratifiers of the 14th Amendment. They could not
have meant to grant birthright citizenship to children of
illegal aliens because, for one thing, there were no illegal
aliens in 1868 because there were no restrictions on
immigration.
The purpose of the 14th Amendment was to constitutionalize
the great 1866 Civil Rights Act, our first civil rights
statute, which begins with the statement from which the
citizenship clause of the 14th Amendment is derived. And that
statement is: All persons born in the United States and not
subject to any foreign power are hereby declared to be citizens
of the United States.
The phrase ``not subject to any foreign power'' would
clearly exclude the children of resident aliens, legal as well
as illegal. The 14th Amendment citizenship clause substitutes
the phrase ``and subject to the jurisdiction thereof,'' but
there is no indication of any intent to change the original
meaning.
Senators Lyman Trumbull of Illinois and Howard of Ohio,
principle authors of the citizenship clause in both the 1866
act and the 14th Amendment, both stated that ``subject to the
jurisdiction of the United States'' means not owing allegiance
to anybody else, which, again, seems to clearly preclude
birthright citizenship for the children of legal resident
aliens and, a fortiori, more so of illegal aliens. It appears,
therefore, that the Constitution far from requiring the grant
of birthright citizenship to the children of illegal aliens is
better understood as denying that grant.
In the 1873 Slaughter-House case, the Supreme Court stated,
in dicta, that: The phrase ``subject to the jurisdiction
thereof'' was intended to exclude from birthright citizenship
children of ministers, consuls, and citizens or subjects of
foreign states born within the United States.
In 1884, in Elk v. Wilkins, the Court held that a child
born to members of an Indian tribe did not have birthright
citizenship because, although born in the United States, it was
not ``subject to the jurisdiction thereof.''
No one, the Court said, can become a citizen of a Nation
without its consent. And there cannot be a more total or
forceful denial of consent to a person's citizenship than to
make that person's presence in the Nation illegal.
In 1898, however, the Court held in U.S. v. Wong Kim Ark
that the citizenship clause granted birthright citizenship to
children born in the United States of legal resident aliens.
Two dissenting Judges--Justices argued correctly that, ``The
rule making the locality of birth the criterion of citizenship
is based on ancient English common law that did not survive the
American Revolution.''
Every European country, including Great Britain now, has
rejected that rule.
Whatever the merits or lack of merit of Wong Kim Ark as to
showing of legal residence, it does not settle the question of
birthright citizenship as to children of illegal residents or
children born of legally admitted aliens who have overstayed
their visa. In 1982, however, in Plyler v. Doe, which was
mentioned, a 5-to-4 decision, the Court in a footnote
interpreted Wong Kim Ark as holding that, ``No plausible
distinction can be made between legal and illegal resident
aliens.''
That statement cannot settle the matter, however, because
it is not only a dictum--it had nothing to do with the case--
but it was based on a clearly mistaken understanding of Wong
Kim Ark.
The apparent general assumption that the children of
illegal aliens have birthright citizenship as a constitutional
right is, therefore, clearly subject to challenge. A recent
scholarly study of the issue concluded the Framers of the
citizenship clause had no intention of establishing a universal
rule of birthright citizenship and Congress has the authority
to reject that rule.
Judge Richard Posner----
Mr. Gowdy. Professor, I don't want--I don't want to
interrupt you. If you--if you could maybe conclude. I hate to
interrupt law professors.
Mr. Graglia. Judge Richard Posner, one of the most
influential men--Justice of the country agreed Congress, he
said, should rethink awarding citizenship to everyone in the
United States, including children of legal illegal immigrants
whose only chance is to come here.
In my opinion, a law ending birthright citizenship for the
children of illegal aliens should and likely would survive
constitutional challenge.
Thank you.
[The prepared statement of Mr. Graglia follows:]
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Mr. Gowdy. Thank you. Thank you, Professor.
Now Mr. Feere.
TESTIMONY OF JON FEERE, LEGAL POLICY ANALYST,
CENTER FOR IMMIGRATION STUDIES
Mr. Feere. Thank you, Chairman Gowdy, Ranking Member
Lofgren, and the distinguished Members of the Subcommittee for
allowing me to speak before you today on the very interesting
issue of birthright citizenship.
Every year, approximately 350,000 to 400,000 children are
born to illegal immigrants in the United States. To put this in
perspective, this means that 1 out of 10 births in the U.S. is
to an illegal immigrant mother. The executive branch
automatically recognizes these children as U.S. citizens,
despite the foreign citizenship and illegal status of the
parent. And, because the executive branch automatically
recognizes them as U.S. citizens, they provide them Social
Security numbers and U.S. passports. The same is true of
children born to tourists and other aliens who are in the
country in a legal status but in a temporary status.
It is unlikely that Congress intended such a broad
application of the 14th Amendment citizenship clause. And the
Supreme Court has only held that children born to citizens or
permanently domiciled immigrants must be considered U.S.
citizens at birth. Some clarity from Congress would be helpful
in resolving this ongoing debate.
In recent decades, the issue has garnered increased
attention for a number of reasons. First is the mass illegal
immigration this country has experienced. The population of
U.S.-born children with illegal alien parents has expanded
rapidly in recent years from 2.7 million in 2003 to 4.5 million
by 2010. Under the immigration enforcement priorities of the
Obama administration, illegal immigrants who give birth to U.S.
citizens have become low priorities for deportation.
Furthermore, the President's DAPA program, Deferred Action
for Parents of Americans and Lawful Permanent Residents
program, a program currently held up in the courts, would
provide benefits to illegal immigrants who give birth here and
allow them to ``stay in the U.S. without fear of deportation.''
That is from the Administration. The broad interpretation of
the citizenship clause forms the basis for these policies.
Second is the issue of chain migration. A child born to
illegal aliens in the United States can initiate a chain of
immigration when he reaches the age of 18 and can sponsor an
overseas spouse and unmarried children of his own. When he
turns 21, he can also sponsor his parents and any brothers or
sisters. Approximately two-thirds of our annual immigration
flow is family-based. And that's part of the reason, not the
entire reason, but part of it. And this number continues to
rise every year because of the every expanding migration chains
that operate independently of any economic downturn or labor
need.
Third, the relatively modern phenomenon of affordable
international travel and tourism has increased the opportunity
for noncitizens to give birth here, raising questions about the
appropriate scope of the citizenship clause. According to the
Department of Homeland Security, in 2013, there were 173
million nonimmigrant admissions to the United States. This
includes people entering for tourism, business travel, and
other reasons, but it also includes those who are engaging in
birth tourism, which is a growing phenomenon that has arisen in
direct response to our government's broad application of the
citizenship clause.
Birth tourism is the practice of people around the world
traveling to the United States to give birth for the specific
purpose of adding a U.S. passport holder to the family while
misrepresenting the true intention of their visit to the United
States. An entire birth tourism industry has been created, and
the phenomenon has grown largely without any debate in Congress
or the consent of the American people. Birth tourism is
becoming much more common with every passing year, and I do
think at some point Congress will have to address it.
Fourth is the sense among many Americans that the United
States is falling behind the global trend on birthright
citizenship, as many countries which once had such policies
have ended them in recent years. The United States and Canada
are the only two advanced economies as rated by the IMF to
grant automatic citizenship to children of illegal aliens. For
these reasons and others, there has been a bipartisan effort to
end birthright citizenship legislatively here, even in Canada
as well.
Multiple legislative efforts to clarify the appropriate
scope of the citizenship clause have been proposed by both
Republican and Democrat politicians as there remains much
debate about who should be considered subject to the
jurisdiction of the United States. In 1993, Senator Harry Reid,
Democrat from Nevada, introduced legislation that would limit
birthright citizenship to the children of U.S. citizens and
legally resident aliens. And similar bills have entered--been
introduced by other legislators in nearly every Congress since,
I believe.
Some clarification from Congress on this issue would
certainly be welcomed and perfectly appropriate. I would be
happy to take any questions on these and other issues. Thank
you.
[The prepared statement of Mr. Feere follows:]
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Mr. Gowdy. Thank you, Mr. Feere.
They have called votes. But, Mr. Cohen, I am going to let
you give your opening, and then we will recess for votes after
that.
Mr. Cohen.
TESTIMONY OF J. RICHARD COHEN, PRESIDENT,
SOUTHERN POVERTY LAW CENTER
Mr. Cohen. Thank you, sir.
It's an honor, a great honor to be here today. Birthright
citizenship is a core value enshrined in the first sentence of
our--of the 14th Amendment. With the exception of children of
diplomats, members of Indian tribes, and hostile enemy
occupiers, the birthright citizenship clause provides that all
children born in this country are citizens entitled to the full
blessings of our democracy. The immigration status of their
parents is irrelevant.
The view of birthright citizenship that I've just expressed
is compelled by the plain language of the 14th Amendment, by
its legislative history, and by Supreme Court precedent. Those
offering a contrary view must bear a heavy burden of
persuasion.
The birthright citizenship clause, as a number of you have
noted, provides that all persons born or naturalized into the
United States and subject to the jurisdiction thereof are
citizens of the United States and the State wherein they
reside. On its face, the clause makes no distinction on the
basis of one's parents' immigration status. From a
commonsensical point of view, children born in this country are
subject to the jurisdiction of the state: They must obey our
laws. They must pay taxes if they earn income. They can be
jailed or removed from their homes and placed in foster homes.
As Professor Graglia noted, Plyler adopted this
commonsensical view, although he apparently believes it's
wrong.
In the seminal case of Wong Kim Ark, the Supreme Court made
it clear that the blessings of birthright citizenship do not
turn on the immigration status of one's parents. As this
Committee knows, the case concerned the status of someone born
in this country to Chinese parents. Under the law at the time,
his parents were ineligible for citizenship. The court
pointedly noted that the parents were subjects of the Emperor
of China. Nevertheless, the court ruled that Wong Kim was
subject to the jurisdiction of this country under the 14th
Amendment and, therefore, a citizen by virtue of having been
born here.
The legislative history of the 14th Amendment powerfully
supports this understanding. During the debate of the proposed
amendment in the Senate, Senator Cowan focused on gypsies in an
effort to persuade his colleagues not to support birthright
citizenship. He described gypsies as pariahs. He said that, and
this is a quote, ``They were trespassers wherever they go.''
Trespassers. That is about as close as it gets in 1866 to so-
called illegal immigrants.
No one in the Senate took issue with Senator Cowan's
stereotypic description of gypsies. No one claimed that they
were not trespassers. But what other Senators did make clear
was that the birthright citizenship clause would confer
citizenship on the children of gypsies.
The Supreme Court, in Wong Kim Ark, took note of this fact.
The Wong Kim Court emphasized that the 14th Amendment granted--
that the 14th Amendment's grant of birthright citizenship is
very broad. The Court also emphasized that, while Congress may
have plenary authority over immigration, including the
authority to legislate against those who were unpopular, it is
powerless to limit birthright citizenship by ordinary
legislation. The only way that that can be done is by
constitutional amendment. That is the course that those who
oppose birthright citizenship must pursue.
Let me use one of our cases to illustrate why I hope those
who want to change the law are not going to be successful.
Recently, we had the privilege of representing a young woman
named Wendy Ruiz. She was born in Florida and lived there all
her life. Yet the State was denying her the possibility of in-
state tuition because she couldn't prove that her parents were
here legally. We sued and won the case. And the court, citing
Plyler, emphasized that we shouldn't visit this supposed sins
of the parents on their children.
Last fall, after attending college, Wendy spoke at the
Dexter Avenue Baptist Church. That's the church from which Dr.
King and his allies launched the modern civil rights movement.
She told a deeply, deeply American story. She talked about the
struggles of her farm worker parents. She talked about the
determination to get--her determination to get an education.
She talked about her dream of becoming a lawyer so she could
give back to the community. One day, I hope that she gets to
testify before this Committee.
It is simply inconceivable to me that our country would
deny the blessings of citizenship to the Wendy Ruizes of the
world. Our immigration system may be broken, but we should
resist the calls to roll back the constitutional guarantee of
birthright citizenship in an effort to fix it. The clause
expresses a fundamental principle of our democracy that there
are no second-class citizens, that all persons born in this
country, regardless of the status of their parents, are equal
citizens under the law.
I appreciate it, Mr. Chairman. I look forward to your
questions.
[The prepared statement of Mr. Cohen follows:]
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Mr. Gowdy. Thank you, Mr. Cohen.
We will recess or adjourn briefly to go vote, and then we
will all come back. And we thank you for your patience while we
are gone.
[Recess.]
Mr. Gowdy. The Committee will come to order. I thank our
witnesses for your patience as we went to vote. And I will ask
my questions, and then I will turn it over to Congressman King,
and then he will recognize Congresswoman Lofgren.
But I want to start by saying to all of them, but in
particular I have the openings of Mr. Cohen and Mr. Eastman in
mind, and I was talking to a colleague on the way to votes
about what an interesting, perhaps even fascinating, legal
argument it is and the way that you both approach the law.
There was no demagoguery, and there were no personal attacks.
And nobody suggested that anybody loved the country more or
less than the other. And I want to compliment all four of you
for your openings, but Dr. Eastman and Mr. Cohen, in
particular, those of us who like the law and are fascinated by
the law, it is--it is a legal inquiry to me.
So, against that backdrop, Mr. Cohen, as I read the 14th
Amendment and the conjunctive ``and,'' all persons born and
subject to the jurisdiction, do you assign meaning to the
phrase ``subject to the jurisdiction,'' and if so, what meaning
do you assign to it?
Mr. Cohen. Of course, I do, and I would assign it the
meaning that the Court gave in the Wong Kim Ark and in Plyler.
It has predominantly a geographic meaning. And the Court in
Plyler was unanimous in that regard. There is another aspect to
it, and that is that we know that ``subject to the
jurisdiction'' excluded persons who were the children of
foreign diplomats, it excluded members of Indian tribes that
had been recognized, and it also excluded what were called
hostile enemy combatants or, you know, alien enemies in hostile
occupation of the country. Those are the three groups that the
language excluded.
Mr. Gowdy. Now, Dr. Eastman, what would you do with Mr.
Cohen's analysis and how would yours be different?
Mr. Eastman. Well, I think it does that, but it also does
much more.
And the reason the Indian example is so important and the
Supreme Court's holding in Elk v. Wilkins in 1884 is so
important is they were neither ambassadors and they were not
foreign invaders occupying our territory. They were born in the
United States, but the Supreme Court held that they did not owe
allegiance to the United States because they owed allegiance to
another power. And it's that question, ``do you owe allegiance
to another power,'' which those who are here visiting
temporarily on tourist visas or temporary work or student visas
and particularly those who are only here illegally continue to
owe allegiance to a foreign power and, therefore, are not
subject to the jurisdiction in that broader sense. And to read
that clause as narrowly as Mr. Cohen does, as the dicta in Wong
Kim Ark did, as the footnote in Plyler v. Doe and is not a
holding at all in that case, I think is to make that clause
largely redundant.
The main force it would do under that view is to protect--
to exclude the children of ambassadors, but they are already
considered not born in the United States because of the fiction
of extraterritoriality, that you know, the sovereignty of the
ambassador follows him wherever he goes. And so it doesn't even
do any work on that thing. You know, all of the original
understanding, the debates in the 14th Amendment, the early
Supreme Court cases and what have you, all added this
allegiance piece, that it was subject to the complete
jurisdiction, not what we call the mere territorial or partial
jurisdiction.
Mr. Gowdy. I was somewhat critical. I think it was the
Roper case where the Supreme Court relied upon what other
countries are doing in the area of capital punishment. I think
it was Roper v. Simmons, if I am not mistaken. So it is a
little disingenuous for me to cite what other countries are
doing as a reason for us to do it, so I'm not doing that. I'm
simply asking why did the other countries to the extent they
changed their citizenship policy, what informed and instructed
the changes that they went through?
Mr. Eastman. You know, Mr. Feere may have a broader answer
than I do. My suspicion is that they recognized that automatic
citizenship was a powerful magnet to avoid the immigration laws
of the country. It's not as powerful as the welfare state, and
it's not as powerful as the employment magnet, I'll concede
that. But it is the third most powerful one. And if you're
going to have, as I testified at the beginning, if you're going
to have anything other than just a free open border, if you're
going to have rules about lawful immigration, you have to
address those magnets. And I don't think our Constitution
compels that we address it in the way we have, and that's the
big fight.
Mr. Gowdy. Mr. Feere, I'll give you a couple of minutes,
and then I want to give Mr. Cohen a chance to finish up, and
then I'll be out of time.
Mr. Feere. Yeah, the research I looked at in terms of what
other countries are doing on birthright citizenship, I was able
to include dealing with other government officials, looking at
other constitutions, that about 30 of the world's 194 countries
do grant automatic citizenship to children of illegal aliens.
As I mentioned earlier, only two advanced economies in the
world, United States and Canada, have that practice.
And the truth is when you start to look at other countries
that claim to have it, it comes with exceptions. You know,
there are certain countries that say, ``Yeah, we welcome
citizenship for everyone,'' but you look at their actual
population, you discover that, you know, 45 percent of their
population is made up of indigenous people who have no right to
citizenship.
You discover that some of these countries are very quick to
enforce their immigration laws, never actually end up giving
grants to children of illegal immigrants. Mexico, for example,
tells me they are not aware of any situation where that's
actually happened, even though they claim to have automatic
birthright citizenship. On top of it all, if you want to look
at Mexico a little bit more, you know, they have a very
different situation than us. If you are born here in the U.S.,
you could grow up to be President of the United States. Not so
in Mexico. You'll never grow up to be president of Mexico
because their Constitution requires that not only are you born
in Mexico but your parents are, at least one of your parents is
as well.
So there is still a second-class status for a lot of folks
in these other countries, but the global trend certainly is
moving away from automatic birthright citizenship. Many of the
countries which once had them ended it in recent decades. The
U.K. ended it in 1983. Australia in 1986. India in 1987. Malta
in 1989. Ireland ended the practice through a national
referendum in 2004, and their biggest concern was birth,
tourism, people coming there to game the system
New Zealand in 2006. The Dominican Republican ended it in
January 2010, and I think that it's important for Congress to
provide specific clarification on this issue. There is plenary
power at issue here. This is something that's not just for the
courts the decide. The political branches do have a say on
immigration.
Mr. Gowdy. I am out of time, but I promised Mr. Cohen that
he would be able to address it. If you have any insight--and
again, I am not often quick to cite what other countries are
doing--but if you have anyinsight into why the trend is going
in that direction, be happy for the Committee to take it.
Mr. Cohen. If I could also, just one quick moment, speak to
a point that Professor Eastman raised, the Elk case. That was
written by Justice Gray, who also wrote the opinion in Wong Kim
Ark. And Justice Gray said that the Elk opinion had no
application outside of the Indian context. And I think that's
very, very important because much of the language that we use
or that Mr. Eastman and Professor Graglia use is drawn from the
context where Congresspersons, Senators were talking about
Indians, which is a much different case. That's the first point
I would make.
In response to the other issue, I would agree with you that
sometimes looking at foreign law is perhaps not the best thing
to do. And I would also say that our Constitution, you know--
and I hope that America is exceptional in this regard--it
embeds this egalitarian, this deeply egalitarian notion of all
citizens being equal by virtue of being born here. And I just
think that's such an important principle.
And for those who want to shoulder the burden of changing
it, they ought to shoulder it by pursuing a constitutional
amendment, not by suggesting that, you know, they can do it in
any other way.
Mr. Gowdy. Well, I apologize for my colleagues for going
over, and I am sure that Mr. King will rectify that as we
switch spots, and he recognizes my friend from California.
Mr. Cohen. Thank you, sir.
Mr. King [presiding]. The Chair would recognize the Ranking
Member of the Immigration Subcommittee, Ms. Lofgren, for 5
minutes.
Ms. Lofgren. I thank you. In your written testimony,
Professor Graglia, you say that the two dissenting Justices in
the Wong Kim Ark case, ``argued correctly that the rulemaking
locality of birth the criterion for citizenship is based on
ancient English law and did not survive the American
Revolution.''
I was interested today, when I opened up to the Politico
online, there is an article, and they have, you know, ``What
Happened on This Day.'' And what happened on this day in 1789
was the very first contested election in the history of the
House of Representatives. The House Committee on Elections
rejected a challenge to William Loughton Smith's eligibility to
represent Charleston, South Carolina. The challenge, brought by
David Ramsay, was based on the fact that Smith could not
satisfy the Constitution's 7-year citizenship requirement for
serving in the House.
Now, in Smith's defense, James Madison himself argued, and
this is a direct quote: ``It is an established maxim, that
birth is a criterion of allegiance. . . . Mr. Smith founds his
claims upon his birthright; his ancestors were among the first
settlers of'' of South Carolina. Mr. Smith was seated and
allowed to serve.
And I would ask unanimous consent to put that very
interesting article into the record.
Mr. King. Without objection, so ordered.
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Ms. Lofgren. In reading the testimony, Mr. Graglia, I think
that you believe Wong Kim Ark was incorrectly decided 117 years
ago. Would that be a fair statement of your belief on that
case?
Mr. Graglia. You're asking me, do I think Wong Kim Ark was
incorrectly decided? As I said, yes, I do.
Ms. Lofgren. Okay. What about Plyler v. Doe that guaranteed
the undocumented children to a right to public education. Do
you think that was wrongly decided as well?
Mr. Graglia. Plyler v. Doe?
Ms. Lofgren. Yeah.
Mr. Graglia. Yes, I do. You see, I take a very limited view
of the power of the Supreme Court. I think these decisions----
Ms. Lofgren. Right. In reading through some of your other
writings, I thought I saw that you believed that Brown v. Board
of Education, that declared separate but equal educational
facilities were unequal, was also wrongly decided. Is that
correct?
Mr. Graglia. No.
Ms. Lofgren. Okay. Well, I'm glad to clarify that.
You know, I think that it's important to not only listen to
what our witnesses say but to consider the source, and so I did
do some reading and came across this in the New York Times:
``Professor Graglia himself has stirred up plenty of
controversy before,'' they stated in their 1997 article. In
1986, he was considered a finalist for a spot on the Federal
Appeals Court but later affirmed the Hopwood decision, but the
Reagan administration backed away from his nomination after a
controversy over his use of the word ``pickaninny'' in the
classroom and his apparent urging of Austin residents to defy a
court-ordered bussing plan.
I would ask unanimous consent, Mr. Chairman, to put this
New York Times article in the record.
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Ms. Lofgren. And now I would turn to Mr. Cohen. You have
read the statements of all of the other witnesses. Would you
care to comment or react to any of those statements?
Mr. Cohen. I would. Thank you. As Professor Graglia pointed
out or acknowledged, he believes that the Wong Kim Ark decision
was wrong. I think that's akin to walking into the machine guns
at this point in time.
Professor Eastman, I think, has a more heroic explanation
to try to defend the case but ultimately one that is equally
unsuccessful.
Professor Eastman argues that Wong Kim Ark's family tried
to become as subject to the jurisdiction of the country as they
could, but his argument is that it requires complete
jurisdiction. And he acknowledges that the family in Wong Kim
Ark did not have complete jurisdiction in the sense that he
uses the term. So I think the argument is contradictory.
The other point I would make about both of their
testimonies is that they quote Mr. Trumball and Mr. Howard, two
Senators, with words like ``allegiance,'' ``complete
understanding,'' that kind of--``complete jurisdiction.'' And,
again, as I indicated earlier, all of those references come
from the very unique context of Indians. It has no
applicability here.
Finally, I think they both rely almost--very heavily on the
language of the 1866 act, ``not subject to any foreign
jurisdiction.'' And the language of the 14th Amendment is quite
different. It was passed or came out of a different committee.
And it was drafted by different persons, and the Wong Kim Ark
case makes it clear that, you know, that language was--in the
14th Amendment was intended to be broader, so those would be
the basic differences I have with their testimony.
Ms. Lofgren. Thank you, Mr. Chairman.
My time is expired, and I yield back.
Mr. Cohen. Thank you.
Mr. Graglia. You know, I might say that I think my position
on Brown has very little to do with this, and your bringing up
things like that in this alleged mistaken ``pickaninny'' is in
the nature of a slur. I don't know why you are bringing up a
these insulting things that has nothing to do with what I'm
testifying for here.
Ms. Lofgren. Mr. Chairman, I would ask unanimous consent to
be granted a minute to engage Mr. Graglia to explain why.
Mr. Labrador. I object.
Mr. King. Hearing an objection, the gentleman has been
heard.
And we'll yield the 5 minutes to the gentleman from Idaho,
Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman.
Mr. Cohen, this is really an interesting issue for me. And
maybe I'm going back to my law school years because I'm hearing
good arguments on all sides. I have long been a defender of the
14th Amendment and birthright citizenship, but I'm hearing some
issues that need to be addressed by Congress and need to be
addressed in some way. So I'm seeing this as two separate
questions that we need to address today.
First, is the policy of birthright citizenship the right
policy for the United States?
Second--actually three questions. Second, was that policy
inherent in the 14th Amendment when it was first passed?
And third, if we want--if we decide that it's not the right
policy, how do we change it? Do we need an actual
constitutional amendment, or can we do that through statutes?
So, as I listen to all the arguments, I heard, I think it
was Dr. Eastman saying that at the time of the 14th Amendment,
there was no illegal immigration in the United States. Is that
correct?
Mr. Cohen. Yes.
Mr. Labrador. So don't you think that makes your argument a
little bit invalid that the 14th Amendment actually grants
birthright citizenship to the children of people that are here
without documentation?
Mr. Cohen. I do not, and I can explain.
Mr. Labrador. Please.
Mr. Cohen. Okay. If you look at the era that Wong Kim Ark
was decided, there is no illegal or----
Mr. Labrador. Let me stop you there.
Mr. Cohen. Sure.
Mr. Labrador. I agree with you that the Supreme Court
decided the issue with regards to the children of legal
permanent residents.
I agree with you, and I disagree actually with Mr. Graglia
that it was incorrectly decided, or at least I believe it's the
law of the land at this time. And I'm not going to make an
argument about that.
But it did not decide whether the children of undocumented
aliens are granted birthright citizenship. Would you at least
agree with me on that?
Mr. Cohen. Well, I would try to make two points, and
because I grew up in Richmond, I speak very slowly, so give me
a----
Mr. Labrador. Me, too. I grew up in Puerto Rico, and I
speak--English is my second language----
Mr. Cohen. Okay. We're even then.
Mr. Labrador [continuing]. And I speak very slowly as well.
Mr. Cohen. The point I'm trying to make about Wong Kim Ark
is that there was neither legal nor illegal immigration at the
time, but what we do know is Wong Kim's parents weren't
eligible for citizenship. That was their stain, right.
Mr. Labrador. Right. So we know they were not eligible, but
we do know that they entered legally, they obtained their
legal----
Mr. Cohen. There was no legal or illegal about it.
Mr. Labrador. Correct. So there was no illegality about any
of their actions.
Mr. Cohen. But the point is that their disability was the
fact that they could not become citizens. In that era, I would
argue that that was analogous to being, you know, illegal.
The second point I would make is, you know, the----
Mr. Labrador. I just don't agree with that. I don't think
you can analogize going through the process and not going
through the process as the same thing.
Mr. Cohen. Well, there was no process. That's my point. And
the second----
Mr. Labrador. There's always a process, sir. You became a
legal permanent resident by going through a process of legal--I
was an immigration lawyer.
Mr. Cohen. I will tell you then----
Mr. Labrador. I studied--but then----
Mr. Cohen [continuing]. In 1866, there was not. That's the
point.
Mr. Labrador. But they didn't become legal permanent
residents by just showing up. They actually had to go to a
naturalization center. They had to go through the process of
legal----
Mr. Cohen. There was no legal or illegal immigration in
1866.
Mr. Labrador. But just being in the United States was
sufficient?
Mr. Cohen. Well, it was----
Mr. Labrador. Are you sure about that? I am not sure that I
am.
Mr. Cohen. I believe that I am.
Mr. Labrador. Okay.
Mr. Cohen. The second point I would make was, you know, the
group of people who were perhaps the most analogous to what we
think of as illegal immigrants today would have been gypsies.
They were described, you know, in very harsh terms, you know,
pariahs on the land, described as trespassers where ever they
go. To me, that's as close as one can get, and it was without
question clear that those, the children of gypsies, were
intended to be children--or intended to be citizens if they
were born in this country. I think that is as close as one can
possibly get.
Mr. Labrador. Wasn't that pursuant to a treaty with China,
though?
Mr. Cohen. No. We're talking about gypsies.
Mr. Labrador. Yeah, but----
Mr. Cohen. No, I don't believe it was. I believe that the
debate in Congress between Senator Cowan and Senator Conness
has no reference to that whatsoever. The--and the Court in Wong
Kim made that same point.
Mr. Labrador. Dr. Eastman, this is what I'm having a hard
time with, because again, I may actually disagree with you on
this issue, but I really find it interesting that we had--there
was no illegal immigration when the 14th Amendment came into
being. And to extrapolate from that that today it means that if
you're the child of an undocumented alien, that you are then
therefore an illegal--a citizen of the United States, I don't
see how you can do that. Can you----
Mr. Eastman. I agree with you, Congressman, and the point
of the Indian exchange is because that was where the question
of your sovereign allegiance was risen.
Indian tribes were domestic sovereigns. They were domestic
dependent sovereigns, and so if that was not sufficient, they
owed ultimate allegiance through their tribe to the United
States and that was held not to be sufficient to confer
automatic citizenship, then almost by definition, somebody who
doesn't even have that intermediate connection to allegiance to
the United States would not be covered by the 14th Amendment.
That's why that discussion is so relevant.
And this exchange about gypsies. I want to real clarify.
Representative--or Senator Cowan thought that it would not
apply to gypsies. When he's talking about they're trespassers,
he's not talking about them being trespassing in the United
States. He's talking about them trespassing on private land
wherever they go. And the answer was, of course, their children
are going to be citizens because they are here lawfully
otherwise and they owe allegiance to the United States.
Senator--he said Senator Cowan said if a traveler comes here--
--
Mr. Labrador. Well, their parents were here legally.
Mr. Eastman. That's right. And he says if a traveler comes
here, he gets the protection of our laws. That's the partial
territorial jurisdiction of which Mr. Cohen claims is what the
phrase means. Senator Cowan--Conness responds: I fail to see
how that has anything to do with our 14th Amendment discussion
because we're not talking about territorial jurisdiction. We're
talking about the allegiance owing jurisdiction, and of course,
if they're here lawfully, they owe the allegiance. That was the
key for them.
And so when you introduce a group of people who do not have
that allegiance, by virtue of the fact that there is no consent
that they be here, that they are here unlawfully, that clause
in the Constitution simply doesn't mean that they have
automatic citizenship.
Mr. Labrador. Thank you. My time has expired.
Mr. King. The gentleman's time has expired.
The Chair will recognize the gentleman from Illinois, Mr.
Gutierrez, for 5 minutes.
Mr. Gutierrez. Thank you very much.
Mr. Graglia, I'd like to ask you, in 2012, you made some
comments that raised a lot of eyebrows explaining why you feel
African American citizens are not competitive in college
admittance, you told a BBC reporter, I quote: ``I can hardly
imagine a less beneficial or more deleterious experience than
to be raised by a single parent, usually a female, uneducated
and without a lot of money.''
Things turned personal when the reporter told you that
since he was Black and was raised in a single-parent family,
you are saying the less ``likely'' not as smart as a White
person of the same age.
In response you said, ``Well, from listening to you and
knowing what you are and what you've done, I'd say you're
rather more smart. My guess would be that you are above usual
smartness for White, to say nothing of Black.''
Can you explain to us that comment?
Mr. Graglia. I don't understand what this line of
questioning, like Representative Lofgren's, has to do with
this. It seems to me some kind of a sleazy underhanded move is
being made here.
Mr. Gutierrez. You know----
Mr. Graglia. Those are difficult questions.
Mr. Gutierrez. You don't want to explain this to us?
Mr. Graglia. Excuse me?
Mr. Gutierrez. You don't want to explain this?
Mr. Graglia. I'm sorry. Give me the----
Mr. Gutierrez. You don't want to explain your comment?
Mr. Graglia. Comment?
Mr. Gutierrez. Yeah, the comments that you made to the
journalist from the BBC.
Mr. Graglia. Explain what you----
Mr. Gutierrez. My guess would be that you, referring to the
journalist from the BBC, are above usual smartness for White,
to say nothing of Black.
Mr. Graglia. I'm not sure I understand that or that I made
the--I'm not sure I made the comment.
Mr. Gutierrez. Oh, you made the comment.
Mr. Graglia. I'm not sure I heard the question.
Mr. Gutierrez. You made the comment. Clearly I think it is
very important. When people are raising issues about changing
the Constitution of the United States and saying that their
motivation is one, I think it is very clear to raise issues and
statements that they have made in the past, especially when it
comes to issues such as this. But since you don't want to speak
about it, I'll let it go.
Mr. Graglia. I have--if I can explain the comment, I have
never made a comment that in any way implied the inferiority of
any group to other groups.
Now, I did say that, you know, sometimes it's very
controversial that affirmative action is based on the
proposition that other groups are not competitive and to get
into selective schools require preferences. Now that just is a
statement of fact, but it still is very controversial and very
emotional. But it's got nothing to do with the quality of
people that I think you're implying.
Mr. Gutierrez. I ask unanimous consent--it's titled ``UT
Law Professor Raises Pulses on Race in Admissions,'' by Rose
Cahalan, in 40 Acres, Special, on December 12, 2012. So it's
right around the corner, just 3 years ago: In 1997, Texas
Monthly called UT's Lino Graglia the most controversial law
professor in America. This week he's living up to the title by
raising pulses with his comment in BBC radio interview on race
in admissions. In the interview, Graglia tells the BBC reporter
that he believes African American students can't compete in
college admissions.
Do you believe African American students can't compete in
college admissions?
Mr. Graglia. No, I do not believe they can't compete.
I do say the reason you have race preferences to selective
institutions is that by equal competition, you get very few
proportional representation. And I'm explaining what
affirmative action is about. That's what it's about.
Mr. Gutierrez. I would like unanimous consent that it be
put in the record. Chairman?
Mr. King. There's a unanimous consent request to place a
document into the record. Do I hear any objections?
Mr. Gutierrez. Thank you.
Mr. Smith. I would like to know----
Mr. Gutierrez. I want to go----
Mr. Smith [continuing]. The nature of the document.
Meanwhile, I'll reserve the right to object.
Mr. King. Sure. The gentleman reserves the right to object.
Please proceed
Mr. Gutierrez. Pass that over to my colleague from Texas.
I would like to now go to Mr. Cohen for a moment. There are
those that look at today's hearing and think that there's a
relationship with today's hearing and the 13th and 14th
Amendments to the Constitution of the United States. How do you
see today's hearing?
Mr. Cohen. I am so sorry, but I could not hear you.
Mr. Gutierrez. I'm sorry. There are those who believe that
today's hearing has serious implications, historical
implications, in relationship to the 13th Amendment to the
Constitution and the 14th Amendment to the Constitution. How do
you see the relationship of today's hearing vis-a-vis those two
amendments of the Constitution?
Mr. Cohen. Well, I think whenever we talk about amending
the Constitution, it's something that we have to do so with
great caution. You know, the Constitution, since the enactment
of the Bill of Rights simultaneously with the ratification of
the Constitution, has only been amended 23 times in over 200
years. And so, first, I think we have to have a darn good
reason to do it.
When we talk about amending our Constitution to take away
some core rights that relate to equality and the egalitarian
ethos that animates our country, I think we ought to be
particularly concerned.
Mr. Gutierrez. Thank you. And can you--how would I say
this--weaken, abridge birthright citizenship without
challenging the 14th Amendment to the Constitution of the
United States?
Mr. Cohen. No. It's clear--the Court made clear in Wong Kim
Ark that the only way that it could be done would be by a
constitutional amendment.
Mr. Gutierrez. Okay. So really what we're having here is a
conversation that has to lead to a change in the Constitution
of the United States.
Mr. Cohen. I would agree if that's the course that the
proponents want to take.
Mr. Gutierrez. I guess we are going to have birthright
citizenship for a long time. Thank you so much.
Mr. Cohen. Thank you.
Mr. King. The gentleman yields back.
And the Chair would request if the gentleman from Texas
would consider his reservation on the point of order.
Mr. Smith. Mr. Chairman, I am going to withdraw my
objection simply because Professor Graglia has already answered
an editorial comment by a magazine writer and who offered no
direct quotes by the professor. So I think the professor has
already adequately answered any question about a nongermane
subject to this hearing.
Mr. King. Since the gentleman from Texas has withdrawn his
reservation, the documents requested by the gentleman from
Illinois will be entered into the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. And the Chair will recognize the gentleman from
Texas for 5 minutes.
Mr. Gutierrez. It's in the record.
Mr. Smith. Thank you, Mr. Chairman.
One, I just want to point out this is a very significant
hearing, and I think we all know that. Somebody else has
already mentioned that this is the first hearing on this
important subject in 10 years. Also, I want to mention a recent
Rasmussen poll, which showed that a majority of the American
people do not support automatic birth citizenship, and I think
that is significant as well.
Now, we also have the trend among industrialized Nations
away from birthright citizenship. There is only one other
country now, beside the United States, that doesn't require at
least one parent to be in the country legally, and I think that
is a positive--positive trend.
Now, let me say that I feel that the only way you can
justify saying that a constitutional amendment is required to
clarify the 14th Amendment is if you ignore the Constitution
itself, which gives the power to Congress to set immigration
policy. You can only justify a constitutional amendment if you
ignore the intent of the Senator who introduced the 14th
Amendment, who clearly said on the Senate floor at the time of
debate on the 14th Amendment that it ``did not apply to
foreigners.'' And I think you can only justify the
constitutional amendment route if you raised the distinction
between legal and illegal immigration, none of which I feel
that you should do.
And I just wanted to make sure that we have on the record
that Dr. Eastman and Professor Graglia and Mr. Feere all feel
that we could clarify the 14th Amendment by statute alone. And,
presumably, that would be challenged and then go to the Supreme
Court, but to my knowledge, the issue at hand, birth
citizenship has never reached the Supreme Court and is likely
to do so because of the standing problem only if the statute is
passed by Congress. So I guess I have a twofold question.
Do you all--do all three of you agree that we could clarify
the 14th Amendment by statute, and do you feel that that's the
only way we will actually resolve the issue, or is there
another way for someone to get standing?
Mr. Eastman. Representative Smith, I agree. And I will say
this, if Mr. Cohen was correct, that the 14th Amendment was
clear, then the only way you can remove birthright citizenship
would be by a constitutional amendment. The dispute here is
whether that phrase ``subject to the jurisdiction'' is clear,
and I think that the legislative record, the early Supreme
Court cases, make clear that it doesn't mean automatic
birthright citizenship for everybody, but it's at least
ambiguous.
And Congress weighing in on what it understands that phrase
to mean would be an important step. Wong Kim Ark clearly does
not settle the question for the children of illegal immigrants,
neither does the Plyler v. Doe. And it's important to
understand how high the floor that the Constitution set and how
much it intruded on your power over naturalization when we
adopted the 14th Amendment because the further higher up we
read that phrase, the less power the Congress has under its
naturalization clause. And so there's a direct conflict here
that needs to be sorted out.
Mr. Smith. And, Professor Graglia, do you agree with that,
too?
Mr. Graglia. I would like to say that the central question
here, obviously, is how should this jurisdictional clause be
interpreted. I teach a course currently called ``Statutory
Interpretation,'' and certainly a prime principle is you should
never interpret or can't interpret a statute to reach an absurd
result. And if the--if the jurisdictional clause provides for
birthright citizenship of illegal aliens, what you've done is
you say you have a situation where, on the one hand, it's
illegal to enter the country without permission, but what this
law means that if you do it, you're a citizen.
I would say that can't mean that. You know, as Justice
Jackson said, if anyone makes an argument like that, the
Constitution requires an absurd result, that can't be. And
bolstering that is what Professor Eastman said. The
Constitution says you have to be born and jurisdiction. Born
puts you under some jurisdiction. So, unless the jurisdictional
clause is redundant, it has to add something.
Mr. Smith. Right. I agree. I think to allow the birth
citizenship--by the way, I don't think we ought to say
birthright. I don't think it's a right. It think it's just
automatic birth citizenship. I think it defies logic and defies
common sense.
Mr. Feere, I think I have time for one more question, and
that goes to the cost of birthright citizenship. You've done
some research on that issue, as I understand it, and give us an
idea beyond what you have already as to the cost of government
benefits as a result of a policy that seems to allow 10 percent
of the births in the country to be to an illegal parent.
Mr. Feere. I mean, it's hard to measure cost. It depends on
how you want to look at it. We do estimate, the Pew Hispanic
Center also estimates that somewhere between 350,000 and
400,000 children are born to illegal immigrants every year.
It's difficult to estimate how many birth tourists there are.
We have a very rough estimate. It could be as high as 35,000,
36,000 people per year as birth tourists. And, of course, those
do come with costs, you know. Any type of cost that a person
generates is going to be factored into these--this analysis.
But for the example of children born to illegal immigrants,
we, obviously, as a Nation, we provide them public education
paid for by the taxpayer, and the--since per-student
expenditures in the United States are roughly about $10,000 per
year, it's likely that somewhere around $13 billion goes toward
the education of illegal immigrants in public schools.
Now, if you look--just looking at U.S.-born children of
illegal immigrants, the cost is approximately $26 billion per
year, and I don't think any Americans would say that we
shouldn't try and educate those who are here in our country,
but the reality is it does come with actual cost----
Mr. Smith. It does have a cost.
Mr. Feere [continuing]. That don't really get addressed.
Mr. Smith. Thank you, Mr. Feere.
Thank you, Mr. Chairman.
Mr. King. The gentleman from Texas yields back.
And the Chair would recognize the gentlelady from Texas for
5 minutes, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. King. Thank you for
presiding at this time.
Let me thank the Ranking Member for her presence and
leadership on these very important issues.
First of all, let me welcome Mr. Cohen. We've spent a lot
of good time together. Thank you for enormous leadership on any
number of important issues.
Mr. Cohen. Thank you.
Ms. Jackson Lee. You know, I was--I was just--I have a
question for the professor, and I was just listening by way of
my staff of the overall view of the gentleman that are, I
think, to your left or right but sitting alongside of you, and
I thought I would pull out the 14th Amendment and read it as I
had interpreted it. And it has not been contravened, I don't
believe. And that is--and Mr. Cohen, you can just shake your
head. I'm not going to come to you right, but I wanted you to
be prepared where I'm going. Is that 14th Amendment has the
issue of naturalized--the 14th Amendment has the issue--I mean,
I'm not coming to you right now, but I'm laying the prep--a
sort of a groundwork for the question.
The 14th Amendment has all persons born or naturalized in
the United States and subject to the jurisdiction are citizens.
But it goes on to say that individuals have due process rights.
There is an argument at the table here as to whether or not
undocumented visa holders are under the jurisdiction. I think
that question fails to their--to their loss because we have due
process rights, whether you are statused or not, and you are
subject to police jurisdiction for sure and the ability to be
arrested for a variety of things beyond your status, or to
press charges or a number of things that are jurisdictional and
then just subject to the jurisdiction of the laws of this land.
But let me--I'll come to you, Mr. Cohen. I just wanted you
to be prepared of what my thinking is. I wanted to raise this
question with Professor Graglia. In the law review article that
you attach to your testimony, you wrote that Wong Kim Ark
decision to adopt the English common law rule for citizenship
argues against birthright citizenship for the children of
undocumented immigrants. This follows, you said, from the
Supreme Court's recognition that under common law, children of
alien enemies born during and within their hostile occupation
of a country do not obtain citizenship in the occupied country.
Do you think a student who overstays his visa is an enemy
of the United States, is number one? When a mother who was
previously deported, reenters the country unlawfully to join
her husband and children, is she part of an invading army? Is
she engaged in a hostile occupation of our land? Occasionally
we hear people refer to the act of illegal immigration as an
invasion. John Tanton, who essentially founded the modern anti-
immigrant movement, has a long history of racist and nativist
remarks, wrote a book 20 years ago called ``The Immigration
Invasion.''
Do you similarly believe that people who enter the country
legally are for all intents and purposes invading our country?
Did you get all three of those, Mr.--Professor Graglia?
Mr. Graglia. I'm afraid I didn't get the question.
Ms. Jackson Lee. Do you think a student who overstays his
visa is an enemy of the United States?
Mr. Graglia. Do I think that a student----
Ms. Jackson Lee. That overstays his visa is an enemy of the
United States?
Mr. Graglia. No, not necessarily an enemy, by no means, no.
Ms. Jackson Lee. Do you think a mother who is coming back
to be with her family and was deported, do you think that she
is--invades a hostile occupation of the land?
Mr. Graglia. No, ma'am. Why would I say a thing like that?
Ms. Jackson Lee. I appreciate you saying that you don't
believe that.
And, then, do you believe that individuals who come back
into the country after being deported, who are seeking to be
with their family, do you believe that they are invading our
country?
Mr. Graglia. You know, I don't understand the basis of
these questions. The answer is no. That sounds like a silly
thing.
Ms. Jackson Lee. Well, I'm glad. I agree with you, it
sounds very silly.
Mr. Graglia. Okay.
Ms. Jackson Lee. That's why I want to go to Mr. Cohen.
Mr. Graglia. Well, I mean, I hope you're not implying I've
said or implied any such thing.
Ms. Jackson Lee. I--I want to make the record clear that
you don't believe that these are hostile invaders.
May I go to Mr. Cohen, please.
Mr. Graglia. I do not believe they're hostile invaders. I'm
very clear about that.
Ms. Jackson Lee. Thank you, professor.
Let me go to you, Mr. Cohen. You know the 14th Amendment is
reminiscent of a bad history in the United States, one of
slavery. And, certainly, we know this is the 150th year of the
13th Amendment.
But how would you answer any legitimate reason or basis to
take away a birthright from an individual born in the United
States on the basis of the 14th Amendment and, also, our right
to due process?
Mr. Cohen. Well, I don't think an argument could be made
from the current Constitution. The point that you made earlier
is the point that a unanimous Supreme Court made in the Plyler
case. Plyler was a 5-to-4 decision on the question of whether
undocumented children were entitled to a free public education,
but all nine Justices agreed that persons who were undocumented
were within its jurisdiction for purposes of the due process
and equal protection clause. All nine Justices also agreed that
that word--that phrase ``within its jurisdiction'' would be
interpreted in a predominant geographic sense, just as the term
``subject to the jurisdiction'' is in the first sentence of
the--of the 14th Amendment.
That is exactly the same decision or interpretation that
was given in the Wong Kim Ark case. So, unless one does radical
surgery on the 14th Amendment, I don't think that one could
accommodate some of the views that we've heard here today.
Ms. Jackson Lee. So our Constitution, then, really supports
the policy which this question asks, Is that citizenship
birthright a right policy? I could----
Mr. Cohen. It embodies----
Ms. Jackson Lee [continuing]. Answer it any other way but
yes.
Mr. Cohen. It embodies it, yes.
Ms. Jackson Lee. I thank you. I thank the gentlemen, and I
yield back. Thank you very much.
Mr. King. Gentlelady from Texas has yielded back.
And we're going to stick with the Texas theme and recognize
the gentleman from Texas, Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman.
I'd like to thank the witnesses for being here today to
talk about this very important issue. The 700,000 Texans that I
have the opportunity to represent, like most Americans, are
deeply concerned about the impacts of illegal immigration in
this country.
Before coming to Congress, I had the opportunity to serve
many of these same constituents in my role as the United States
attorney for the Eastern District of Texas. Back in April of
2008 in that role, I arrested some 300 illegal aliens that had
committed Social Security fraud and identity theft against
hard-working Americans. Now, my actions in that regard were not
a matter of choice. I had taken an oath to faithfully execute
the laws of the United States. That, by the way, is the same
oath that the President takes, to faithfully execute the laws
of the United States.
And so many of my constituents are frustrated with what
they are seeing right now as a willful disregard for the rule
of law in this--in this country. And, given that broader
context, my constituents are concerned that the 14th Amendment
that we're talking about today, the citizenship clause of the
Constitution, is interpreted in a way that gives children of
illegal aliens citizenship at birth.
So many of the folks that I represent feel that the current
policy encourages folks to come to the United States solely for
that purpose, and there is ample evidence out there of this
fact. Just back in March, the Wall Street Journal reported that
Federal agents had raided several sites in California that were
connected to different multimillion dollar birth tourism
businesses or anchor baby businesses. And I think Mr. Eastman,
I believe, or maybe Mr. Ferre talked about the fact that this
is an industry where maybe 350,000 to 400,000 children are
being born to illegal immigrants in the United States, and that
just really brings this issue into focus for so many.
So I'd like to start, Mister--Dr. Eastman, with a question
for you. I've understood your testimony to be here today the
same as Mr. Graglia and Mr. Feere that Congress does have, in
your opinion, the ability to deal with this issue statutorily,
as Mr. King would like to do, as opposed to requiring a
constitutional amendment. Is that correct?
Mr. Eastman. That is correct.
Mr. Ratcliffe. All right. So, given that, I'd like to--for
you to comment on the importance, from your perspective, of
Congress moving forward and settling this issue once and for
all and exercising its constitutionally provided power over
naturalization.
Mr. Eastman. Sure. And if I may incorporate an additional
brief response to Representative Jackson Lee in that because I
think it's important to get beyond the gotcha game that's going
on here.
The reason even illegal immigrants are protected by the due
process and equal protection clause is because those phrases
use the word ``person,'' all persons. There's nobody that
claims that they are equally protected by the privileges and
immunities clause, which applies only to citizens.
The question for the citizenship clause is in which box
illegal immigrants fall. Are they citizens entitled to all
three protections in the 14th Amendment or persons who are not
citizens that get due process and equal protection rights as
well?
And it's my contention and Professor Graglia's contention
that the ``subject to the jurisdiction'' clause raises an
additional requirement than mere birth on U.S. soil. Clarifying
that to what the floor of the Constitution actually requires is
critically important so that you can address the policy
questions on whether it makes any sense whatsoever to have
limitations on immigration and yet, if you flout our laws, you
get the Holy Grail of American citizenship. And I don't think
the Constitution prevents you from addressing that fundamental
policy question. And the notion that it does, I think is
absurd. And that's what we're trying to clarify here.
Mr. Ratcliffe. Thank you, Dr. Eastman.
Mr. Cohen had testified earlier and talked about--and I'm
quoting here, the ``principle of citizenship by birth that is
as old as this nation'' and cited in connection with an 1830
Supreme Court case, Inglis v. Trustees of Sailor's Snug Harbor.
Are you familiar about that case at all?
Mr. Eastman. Yes, I am.
Mr. Ratcliffe. Okay. And so do you agree with Mr. Cohen's
testimony?
Mr. Eastman. No. I don't. And, quite frankly, I'm stunned--
and Representative Lofgren made the same error. The language
that they're both quoting, in his testimony and her opening
statement, is from the dissenting opinion in that case.
The majority actually held that the individual was not a
U.S. citizen, despite the fact that they were born in New York.
Justice Story goes on to offer further explanation in his
dissenting opinion, and he says this: To constitute a citizen,
the party must be born not only within the territory--that's
birth within the United States--but within the legiance of the
government. That's exactly the point I've been making about
what the 14th Amendment requires.
Mr. Ratcliffe. Thank you, Dr. Eastman.
Gentlemen, I appreciate all of you being here. I have
questions for all of you, but they didn't give me enough time.
So I will yield back.
Mr. King. The gentleman from Texas yields back.
And the Chair recognizes himself for 5 minutes. And I thank
the witnesses for your testimony here today.
I'm just recapping how this works to me. Two questions out
there. One is the policy question, and the other is the
constitutional question.
Now, if we could just take this to the policy question for
a moment--and I'll just speak to that--that when I look around
the world and I see countries that have a policy like this and
the list of countries that have a policy like this, the only
one in the modern industrialized world that seems to retain
this policy is Canada, plus the United States. And the rest of
them, I don't know if anybody has lined up in any long lines to
get into those other countries that do have a birthright
citizenship as part of their policy.
I listened to people--representatives from the Dominican
Republic talk about what's happening with Haiti being their
neighbor and how they essentially analyzed their constitution
and found a way to reverse that a few years ago to their
benefit.
And so I don't think I'm hearing an argument as to why it
would be a good idea to grant automatic citizenship to any baby
that could be born in the United States to any mother who could
find a way to get into the United States. That hands over the
immigration policy to everybody except Americans. And so I
don't know that that's even a debate before this Committee,
unless you want to expand your political base by any means
necessary.
Second thing comes back to, then, is the constitutional
question, which I was confident of when I walked in this room
today and I remain confident of that position, but the question
to pose really is: How do we get the constitutional question
answered? And the way to get the constitutional question
answered is, is anybody going to litigate today? I don't think
so. We have to have a statute in order to trigger that
constitutional litigation.
And, as I examine through this, if that's the case, I don't
know what's left out here to be answered by this Committee or
by the witnesses if--if it's the majority opinion of this
Committee that it's not a good policy to grant automatic
citizenship to any baby born on U.S. soil for any reason
whatsoever, other than a couple of light exceptions, if it's
not a good policy, then how do we get to a good policy to
rescind and reverse this practice that has grown?
And so I just go--I would turn to Mr. Cohen and I wanted to
ask you for the record, watching the President's policies on
immigration that have emerged from the Oval Office, I presume,
on DACA and DAPA and the Morton memos and these components that
have put this country through this strife that we have, you
have looked at those constitutionally--and I don't want to
editorialize on those--but could you just give me kind of a yes
or no or a general idea whether you believe that they are
constitutionally founded?
Mr. Cohen. You know, I don't feel confident to offer an
opinion on that subject----
Mr. King. Okay.
Mr. Cohen [continuing]. Quite frankly.
Mr. King. And that's fine. That wasn't a subject to come
before this Committee, and I appreciate that.
I just make the point that the President is making up
immigration laws as he goes. I don't think that there's a solid
argument that the President has the authority to legitimate.
And Article I says all legislative powers herein shall be
granted--shall be vested in a Congress of the United States.
And that's the House and the Senate. And so that's the
statutory part of this.
But I would pose this to Mr. Eastman: On the same premise
that the President asserts that he has a constitutional
authority to, I would call it, legislate an immigration power
and grant a ``lawful presence''--and I put that in quotes--to
the DAPA recipients, the DACA recipients and the others that
are picked up in the Morton memos, on that premise, could not
the next President of the United States end birthright
citizenship based on the same rationale?
Mr. Eastman. Well, I suppose based on the same rationale. I
would hope the next President of the United States would take
more seriously the obligations of the Constitution than, I
think, this President has manifested on that precise issue. I
don't think he has the constitutional authority to do that.
And I'll go back to what I said before. If--if Mr. Cohen is
right that the Constitution mandates birthright citizenship for
everyone born in the United States no matter what the
circumstances, it would take a constitutional amendment to
revise that. I believe he's wrong about that. I believe all the
evidence strongly supports that he's wrong about that. That's
the issue that remains open and that needs to be tested.
Mr. King. Thank you.
And, Mr. Feere, I didn't hear from you. And if you'd go a
little more broadly on the--on the policy side of this----
Mr. Feere. Right.
Mr. King [continuing]. And the effects of this to society.
Is there--is there a limitation that we could expect if this
practice goes on and, say, the next Congress and the next
President simply--or if there's a constitutional amendment that
guarantees this birthright citizenship, can we--I want to say,
can we confer citizenship on people that don't even want it and
how do--what--what happens to the demographics of America if
this policy is not reversed?
Mr. Feere. Well, one of my concerns is that this whole
debate is the result of a phenomenon that is sort of happening
without anyone at the helm. No one is really clear exactly when
the first illegal immigrant was entered into the country. No
one is really clear as to when the first birth tourist came
here.
But the Administration--some Administration decided to say,
you know what, go ahead and give them a Social Security number,
give them a U.S. passport. And it just sort of happened at some
point. And no one really knows when.
And I think Congress hasn't addressed problem. And, as a
result of not addressing it, we rely on floor statements from
100 years ago. We're relying on a footnote from a Supreme Court
case in 1982. And I think some clarification on the issue from
Congress would help a lot.
And to the issue--to the idea that Congress can't legislate
on constitutional matters, one of the Committee Members,
Congresswoman Jackson Lee this session, I believe, has a bill
that would narrow the scope of the Second Amendment. It would
raise the gun ownership from 18 to 21, I believe. So she
clearly believes that Congress has a role in, you know,
interpreting and deciding the scope of constitutional
amendments. As I mentioned in the opening, Senator Harry Reid
believes the same thing, at least, did at one point. So I
think----
Mr. King. We'll get that quote into the record.
As my clock is ticking, Mr. Feere, I'd like to just turn
the last question to Mr. Cohen.
And, Mr. Cohen, you heard Mr. Graglia testify that the
reward for committing the crime of unlawful entry--the reward
for committing the crime of unlawful entry into the United
States is conferring automatic citizenship on the child that
you might give birth to in the United States.
Can you give another example of a reward for law breaking--
for committing a crime, specifically a crime, and a reward
that's conferred in any aspect of U.S. law?
Mr. Cohen. No, I can't.
But the reward is not--or the penalty is not something that
should be borne by the innocent child. That would be the
argument I make. And I would say the argument is as old as
Bible.
Mr. King. And reclaiming my time--and I appreciate the
gentleman's response--and I would say that if we had that same
sentiment applied to the people who are locked up in our
prisons, there wouldn't be anyone in our prisons.
So I appreciate the testimony that we received today. It
concludes today's hearing. And I want to thank all our
witnesses for attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is now adjourned.
[Whereupon, at 3:31 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Immigration and Border Security
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