ABC News headline suggesting a “new baby boom” as a result of “birth tourists” undermined by article itself

ABC article headline, “A New Baby Boom?” undermined by statistics cited in article. The April 14 ABCNews.com article was headlined, “A New Baby Boom? Foreign 'Birth Tourists' Seek U.S. Citizenship for Children.” However, that suggestion is undermined by the statistics cited in the article. While the article reported in its third paragraph that “the number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2006,” it did not acknowledge until paragraph 14 that "[o]f the 4,273,225 live births in the United States in 2006, the most recent data gathered by the National Center for Health Statistics, 7,670 were children born to mothers who said they do not live here," or 0.17 percent of all live births in 2006.

ABC: "[I]t is difficult to know for sure" how many of the nonresident mothers were “birth tourists.” Further undermining ABC's headline, the article stated, “Many, but not all, of those mothers could be 'birth tourists,' experts say, although it is difficult to know for sure.” The article continued: “The government does not track the reasons non-resident mothers are in the United States at the time of the birth or their citizenship, meaning births to illegal immigrants who live in the United States are counted in the overall total.” Despite noting that “it is difficult to know for sure” how many “mothers could be 'birth tourists,' ” the ABC News article nonetheless asserted as fact that "[m]illions of foreign tourists visit the United States every year, and a growing number return home with a brand new U.S. citizen in tow."

NPR's Frank James: “We're talking about a fairly minuscule number” when you look at the statistics. On NPR's The Two-Way blog, Frank James noted the 7,670 figure cited in the ABC article and wrote: “Wait, that's less than two-tenths of one percent [of all live births]. So we're talking about a fairly minuscule number.” He then cited the article's claim that “it is difficult to know for sure” how many mothers could be “birth tourists” and wrote, “So the number of possible 'birth tourists' is even a smaller subset of what was already a pretty paltry number.” James concluded, “Much less dramatic an issue when looked at that way, no?”

Article advances misleading idea that “anchor babies” “can serve as a foothold” to make “entire family” legal U.S. citizens

From the ABCNews.com article:

[Center for Immigration Studies' Mark] Krikorian and others call the offspring of birth tourists “anchor babies,” because they can serve as a foothold for future legal immigration of an entire family.

“Anchor baby” is “derogatory, even racist” term

Rocky Mountain News: Term “considered by many to be derogatory, even racist.” A Rocky Mountain News article reported of children born in the United States to undocumented immigrants: “Opponents of illegal immigration call them 'anchor babies' -- a term considered by many to be derogatory, even racist, because it implies that Hispanics are having children as a way to stay in the U.S.” [Rocky Mountain News, 8/29/2006]

San Diego Union-Tribune: Term is “pejorative.” A San Diego Union-Tribune article stated that an anti-immigration activist “dismissed teens marching in Los Angeles as 'probably part of the anchor baby-boom of the late 1980s and 1990s,' using a pejorative term for the U.S.-born children of undocumented immigrants.” [San Diego Union-Tribune, 4/3/2006]

Reno Gazette-Journal: Term is “pejorative.” The Reno Gazette-Journal reported that "[s]ome opponents of illegal immigration call such children 'anchor babies,' a pejorative term that implies the child will serve as an 'anchor' for his or her illegal immigrant parents, preventing the parents' deportations and acting as a pathway to citizenship for the whole family." [Reno Gazette-Journal, 10/19/2008, accessed from the Nexis database]

Chicago Tribune's Zorn: “Anchor baby” is “loaded language.” Chicago Tribune columnist Eric Zorn wrote that after receiving complaints for his prior use of the term:

I defended myself -- the term has appeared regularly in news stories since 1997, usually softened by quotations as in my column, and refers to the practice/hopes of illegal immigrants that if their children are born in the U.S. they will serve as an anchor that will help allow their parents to say here. And Doug Rivlin, spokesman for the National Immigration Forum, a leading immigrants'-rights group, said he does not consider the term particularly offensive.

However, Rivlin said, it's a “politically charged term” originated and favored by those who are opposed to liberalized immigration laws. And a quick check through various sources confirms this.

“They use it to spark resentment against immigrants,” Rivlin said of his ideological foes. “They use it to make these children sound non-human.”

To me, that's good enough reason to regret having used it and to decide not to use it in the future.

Sound arguments don't need loaded language. [Zorn's Chicago Tribune “Change of Subject” blog, 8/18/2006]

“Anchor babies” claim misleadingly suggests undocumented immigrants can easily get legal status

U.S.-born children of undocumented parents must be 21 before petitioning to bring their parents to U.S. legally. Under federal law, a U.S. citizen must be 21 years old to petition to bring alien parents or other relatives into the United States as legal immigrants. [U.S. Code § 1151]

Restriction intended to prevent “wholesale circumvention of the immigration laws.” The Congressional Research Service has reported of the requirement: “Federal courts have found that this requirement is meant 'to prevent wholesale circumvention of the immigration laws by persons who enter the country illegally and promptly have children to avoid deportation,' and does not violate equal protection by distinguishing between U.S.-citizen children who are minors and those who have attained majority.” [Congressional Research Service report, 9/13/2005]

Process to petition for parents' citizenship is arduous. According to a research document on “The Anchor Baby Myth” produced by the Scott Immigration Law Firm:

A child born in the US is a US citizen, but the immigration benefits to the parents are extremely limited. After the alien mother (or father) has been present for no less than ten years, the alien may apply for Cancellation of Removal (aka “Cancellation”) if she can prove ten years of good moral character and that deporting her would be an exceptional and extremely unusual hardship to her US citizen child. This is an unusual form of relief as there is an annual cap of 4000 on the number of illegal immigrants who can be granted this type of Cancellation, and for the past several years the government has not reached that cap. This means that under 4000 people are granted this type of Cancellation annually.

Once the child turns 21, he can file a visa petition for the parent. The Restrictionists present this information as though it then becomes a simple matter of filing paperwork. What they don't tell you is that if the parent entered without inspection, the parent is not able to apply for a green card from within the US. She would have to apply for a visa at the consulate. But because she was previously unlawfully present for more than a year, she will be banned from entering the US for ten years. As the child is not a qualifying relative for a waiver of this ground of inadmissibility, she would not be able to return to the US legally for ten years despite have a US citizen child over age 21.

Even if the parent had entered the US lawfully and/or were not subject to the ten-year ban, the adult child would still need to prove that he has enough income to support the parent(s) and himself at no less than 125% of the poverty level. Under the 2009 poverty guidelines, a person wanting to sponsor both parents would have to show he makes at least $22,887, an income level many 21-year-olds have trouble achieving. The child may seek a co-sponsor to help meet the income requirement, but even so, it's clear that legalizing one's parents takes more than the mere filing of papers. Every year many US citizens petition for their parents, but there is no indication that US-born children of illegal immigrants are filing a majority of parental petitions. [Scott Immigration Law Firm document]

ABC relies heavily on sources with histories of controversial, racially charged remarks

All three “critics” of “birth tourism” ABC quotes have histories of making inflammatory, racially charged remarks. The ABC article quoted Jerome Corsi, identifying him only as “a conservative author and columnist who has studied the issue of birth tourism”; Lino Graglia “of the University of Texas law school”; and Mark Krikorian “of the Center for Immigration Studies.” ABC did not note that Krikorian's Center for Immigration Studies is -- as the Los Angeles Times did in a March 31 article -- “a Washington-based group that wants immigration controls tightened.” Nor did ABC identify the Texas Review of Law & Politics, in which Graglia had published an article ABC cited, as a conservative law review journal that publishes “conservative articles -- articles that traditional law reviews often fail to publish.” From the ABC article:

“It's really an incorrect interpretation of the 14th Amendment,” said Jerome Corsi, a conservative author and columnist who has studied the issue of birth tourism. “Birthright citizenship is a loophole ... [and] as it expands into a business for entrepreneurs in foreign countries who offer birth tourism packages, it markets the loophole to attract additional mothers to the U.S.”

Lino Graglia of the University of Texas law school wrote in the Jan. 11 Texas Review of Law & Politics that the authors of the 14th Amendment never would have imagined their words bestowing citizenship to illegal or visiting immigrants.

“It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry,” Graglia wrote of birthright citizenship.

[...]

“You just turn people down for being pregnant,” said Mark Krikorian of the Center for Immigration Studies. “That should be the default position and then there'd have to be some very good reason for an exception.”

Krikorian acknowledged that some people might find a ban on pregnant visitors “outrageous,” but questions the rationality of the alternative.

“Do you really think that's right that somebody here visiting Disneyland should have their children be U.S. citizens, which they'll then inevitably use to get access to the U.S.?” he asked.

Corsi has long history of inflammatory rhetoric and embracing fringe conspiracy theories. As Media Matters for America has noted, Corsi previously wrote in a May 2006 column that “President Bush is pursuing a globalist agenda to create a North American Union, effectively erasing our borders with both Mexico and Canada. This was the hidden agenda behind the Bush administration's true open borders policy. Secretly, the Bush administration is pursuing a policy to expand NAFTA politically, setting the stage for a North American Union designed to encompass the U.S., Canada, and Mexico.” Corsi also has falsely claimed that President Obama posted a “false, fake birth certificate”; has appeared on a “pro-White” radio show; and has made numerous inflammatory comments, including:

• Corsi on Islam: “a worthless, dangerous Satanic religion”

• Corsi on Catholicism: “Boy buggering in both Islam and Catholicism is okay with the Pope as long as it isn't reported by the liberal press”

• Corsi on Muslims: “RAGHEADS are Boy-Bumpers as clearly as they are Women-Haters -- it all goes together”

• Corsi on “John F*ing Commie Kerry”: “After he married TerRAHsa, didn't John Kerry begin practicing Judiasm [sic]? He also has paternal grandparents that were Jewish. What religion is John Kerry?”

• Corsi on Senator “FAT HOG” Clinton: “Anybody ask why HELLary couldn't keep BJ Bill satisfied? Not lesbo or anything, is she?”

Graglia reportedly claimed that “blacks and Mexican Americans ... have a culture that seems not to encourage achievement.” Graglia reportedly said in September 1997 that “blacks and Mexican Americans are not academically competitive with whites in selective institutions. They have a culture that seems not to encourage achievement.” Graglia later reportedly said his remark was “carelessly put, and I regret it.”

Krikorian has history of inflammatory comments. In September 2008, Krikorian asked if diversity policies touted by Washington Mutual were the "[c]ause" of the bank's collapse. In a May 27, 2009, National Review Online post, Krikorian wrote of the pronunciation of then-Supreme Court nominee Sonia Sotomayor's name, “It Sticks in My Craw.” In a February 17 NRO post, Krikorian discussed how to get immigrants to “vote more like other Americans, i.e., more Republican.” In January, Krikorian wrote, “My guess is that Haiti's so screwed up because it wasn't colonized long enough.”

Contrary to claims of “critics,” legal experts agree that 14th Amendment extends birthright citizenship

From the article:

Still, critics say the practice largely goes unchecked and exploits the true meaning of the 14th Amendment to the U.S. Constitution, enacted after the Civil War to grant citizenship to descendants of slaves.

“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,” the amendment reads.

“It's really an incorrect interpretation of the 14th Amendment,” said Jerome Corsi, a conservative author and columnist who has studied the issue of birth tourism. “Birthright citizenship is a loophole & [and] as it expands into a business for entrepreneurs in foreign countries who offer birth tourism packages, it markets the loophole to attract additional mothers to the U.S.”

Lino Graglia of the University of Texas law school wrote in the Jan. 11 Texas Review of Law & Politics that the authors of the 14th Amendment never would have imagined their words bestowing citizenship to illegal or visiting immigrants.

“It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry,” Graglia wrote of birthright citizenship.

Closing the 'Birth Tourism' Loophole

The Supreme Court has only addressed the issue once, ruling in 1898 that citizenship applies to U.S.-born children of legal immigrants who have yet to become citizens.

Some legislators, including U.S. Rep. Gary Miller, R-Calif., have called for revising the Constitution to forbid citizenship by birth alone and thereby end the attraction of birth tourists. But other politicos, from both sides of the aisle, say such an approach is politically unrealistic, not to mention unnecessary.

ACS: “To revoke birthright citizenship based on the status and national origin of a child's ancestors goes against the ... text and context of the Fourteenth Amendment.” In a May 2009 American Constitution Society (ACS) issue brief, Elizabeth Wydra wrote:

A close study of the text of the Citizenship Clause and Reconstruction history demonstrates that the Citizenship Clause provides birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. Perhaps more importantly, the principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, suggest that we amend the Constitution to reject automatic citizenship at the peril of our core constitutional values. To revoke birthright citizenship based on the status and national origin of a child's ancestors goes against the purpose of the Citizenship Clause and the text and context of the Fourteenth Amendment.

[...]

Both opponents and supporters of the amendment shared the view that this language automatically granted citizenship to all persons born in the United States (except children of foreign ministers and invading armies). In fact, opponents of the Fourteenth Amendment's Citizenship Clause objected to it precisely because they understood it to constitutionally protect birthright citizenship for children of aliens born on U.S. soil. For example, Senator Cowan expressed concern that the proposal would expand the number Chinese in California and Gypsies in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit “trespass” within the United States.

Former Thomas clerk: “Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.” In a March 2007 Los Angeles Times op-ed, James C. Ho, an appellate and constitutional litigator and former clerk to Justice Clarence Thomas, wrote that "[b]irthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower." Ho further wrote that the Supreme Court has upheld that view in several decisions:

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship -- but no one disputed the amendment's meaning. Opponents conceded -- indeed, warned -- that it would grant citizenship to the children of those who “owe [the U.S.] no allegiance.” Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not “subject to our laws” would fall outside the amendment's reach.

The U.S. Supreme Court long has taken the same view. In 1898, the court held in United States vs. Wong Kim Ark that the U.S.-born child of Chinese immigrants was constitutionally entitled to citizenship, noting that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens.”

The court has reiterated this view in subsequent decisions. In Plyler vs. Doe (1982), the majority concluded, and the dissent agreed, that birthright citizenship under the 14th Amendment extends to anyone “who is subject to the laws of a state,” including the U.S.-born children of illegal aliens. And in INS vs. Rios-Pineda (1985), a unanimous court agreed that a child born to an undocumented immigrant was in fact a citizen of the United States.

Princeton provost Eisgruber: “The United States Constitution guarantees citizenship to almost every child born in the United States.” In a 1997 New York University Law Review article, Christopher L. Eisgruber, provost of Princeton University and a former clerk for Supreme Court Justice John Paul Stevens, wrote: “The United States Constitution guarantees citizenship to almost every child born in the United States. Apart from an exception for children born to foreign diplomats, the Constitution's birthplace principle applies without regard to the ethnicity or legal status of a child's parents - so, for example, children born in the United States to illegal aliens are American citizens.” Eisgruber further wrote:

This is an arresting rule. Until recently it has also been remarkably little known. Many lawyers (and some law professors) are surprised to learn that the Constitution confers citizenship upon the American-born children of illegal aliens. With few exceptions,the vast literature on constitutional theory has largely ignored the principle.

Recently, however, politicians have discovered the Fourteenth Amendment's Citizenship Clause and have attacked it. A House of Representatives subcommittee has held hearings on an amendment that would deny citizenship to the American-born children of illegal aliens. A similar proposal was temporarily included as a plank in the Republican Party's 1996 presidential platform, and anti-immigration groups mounted a substantial (albeit unsuccessful) campaign in California on behalf of an advisory referendum endorsing such an amendment. Earlier, during the summer of 1993, California Governor Pete Wilson proposed a similar amendment.

The purpose of this Article is to investigate the theoretical foundations of the Constitution's treatment of birthright citizenship. I will seek to answer two questions. First, what rule ought to govern birthright citizenship in the United States? I will defend the Fourteenth Amendment's birthplace rule. Second, what consequences would follow if the Constitution were to depart from the birthplace rule for determining citizenship? I will argue that it would, in theory, be possible to quarantine the effects of an undesirable amendment, but that such quarantines are, in practice, fragile.