I had a former “anchor baby” in my office the other day. You know what I’m talking about, don’t you? It’s a child who will allow his illegal-alien parents to become citizens before you can say “God Bless America.”
That child, now in his teens, was born in the United States and therefore became a citizen at birth. This didn’t much help his parents, who worked long and hard and paid massive fines to become documented. Little “Pedro” simply stood on the sidelines as mom and pop did everything I told them to do so they could finally obtain legal status. He was, for all intents and purposes, irrelevant.
But to people like Donald Trump, my mythical anchor baby was a menace to all good Americans who did things the right way, making sure that they didn’t pass through the birth canal before getting the passports of both sets of grandparents as well as a certificate of authenticity from Ancestry.com.
I don’t often write about immigration. That’s because I invariably get emails like, “You can’t be unbiased because you make your living, buying Jaguars and such, as an immigration lawyer.” And that’s from my philosophical friends. Just imagine what the liberals send.
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But it is impossible to play the ostrich when Trump starts reinventing the Constitution and doing it over the bodies of diapered tykes.
So let me wade across this political Rio Grande and try to explain why most lawyers, with a few notable exceptions, believe that Pedro, Sergei and Giuseppe are U.S. citizens as long as they draw their first bountiful breaths on U.S. soil.
According to the 14th Amendment, “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.”
This is We the People, speaking in most solemn terms, through the amendment process. Critics have argued that the wording of the amendment is vague (what does “subject to the jurisdiction of” mean?) and that the legislative history of the citizenship clause shows that it was only meant to restore dignity and wholeness to former slaves. Some of those critics, like renowned judge Richard Posner, are eloquent and persuasive.
But it is extremely difficult to avoid the thought that the whole question of birthright citizenship got traction at precisely the moment illegal immigration became a political hot potato and, therefore, that questions about its legitimacy are intellectually dishonest.
My proof? Well, it seems that opponents of birthright citizenship only woke up to its horrors when illegal aliens started producing Yankee Doodle babies.
All of a sudden, those swaddled “invaders” were a cause for concern because, supposedly, they opened the floodgates to a long, vast, swiftly moving phalanx of chain migration. Let me assure you that this is not the case, and I have 20 years of experience to prove it.
In order to be able to sponsor a parent for legalization, an “anchor baby” needs to have reached the age of 21. It’s hard to imagine that most immigrants, legal or not, think that far in advance, as in “Let’s have a baby and then two decades from now we can vote!”
Another way that an “anchor baby” could help is if the parent is arrested by immigration and he can prove that deportation would cause hardship to that kid, but only if the parent has been living uninterruptedly in this country for at least 10 years.
This idea, then, of a quick meal ticket to citizenship because you happen to have a child born in the United States is the strange figment of a nativist imagination.
I’ve heard all the arguments about the 14th Amendment never being intended to give this great gift of citizenship to an accident of birth. But both Supreme Court precedent as well as a clear reading of the Constitution make it highly unlikely that Trump or his friends will be successful in stripping Pedro, Sergei and Giuseppe of their birthright. Plus, it’s really hard to amend the Constitution.
I don’t underestimate the frustration people have with our current immigration mess. I live it, breathe it, try to navigate its turgid waters every day. But catchy sound bites, unrealistic policy papers and opportunistic political promises will not solve the problem.
So Trump should just stop whining, or he'll start sounding like an “anchor baby.”
Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News.