Proposed legislation would let each state define citizenship - East Valley Tribune: Immigration

Proposed legislation would let each state define citizenship

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Posted: Wednesday, January 5, 2011 6:00 am | Updated: 11:27 am, Thu Jan 6, 2011.

Arizona would claim the right to determine citizenship of those born here under the terms of legislation being introduced today.

The proposal, being unveiled in Washington, would have each state — and not the federal government — define citizenship. More to the point, citizenship would be available only to those born in the state who had at least one parent who already is a citizen or is at least a permanent legal resident.

And to make the state determination of citizenship work, the law would be backed by an compact where all participating states agree to differentiate between birth certificates issued to those who are determined under the new standard to be citizens and those who are not.

Senate President-elect Russell Pearce, R-Mesa, who is working with counterparts across the nation, said he envisions the Arizona Department of Health Services being required to issue two different types of birth certificates. One would spell out the newborn is a citizen, the other saying that the certificate shows only birth, not citizenship.

It would be up to the parents to produce proof of citizenship or permanent residency to get one of the first kind of birth certificates. No proof means a birth certificate that does not confer citizenship on the child.

Pearce said the idea is to reclaim the original intent behind the 14th Amendment. He said the measure, enacted after the Civil War, was never meant to give citizenship rights to children born to people who entered this country illegally.

But Pearce said that even if the proposal becomes law in Arizona and elsewhere, that is just the beginning of the battle.

“What we’re looking for is a (U.S.) Supreme Court fight,’’ he said, one that will reverse earlier court rulings.

That fight is likely to take the form of a lawsuit filed on behalf of a child born in Arizona who has been denied a full-citizenship birth certificate. Pearce, however, said he is confident that a majority of the current Supreme Court will agree with his argument that the states, as sovereign entities who formed the federal government, get to determine citizenship.

“This is a concept we have lost across the nation,’’ he said.

Pearce will not be at today’s press conference, remaining in Arizona to work on the upcoming legislative session. But two other Arizona GOP lawmakers who support the plan will be in attendance: Rep. John Kavanagh of Fountain Hills and Sen. Ron Gould of Lake Havasu City.

Rep. Kyrsten Sinema, D-Phoenix, a foe of the measure, said the right of states is solely to determine who is a resident. That, she said, governs things like how long someone has to live there to be able to vote.

Citizenship, said Sinema, is decided at a national level.

Today’s introduction of draft legislation will formally kick off the debate over what have been called by some “anchor babies.’’ Supporters of the change in the law say these children of illegal immigrants, by virtue of their own citizenship, then get rights to sponsor others for citizenship.

“We’re not denying anything to anybody,’’ Pearce said, since they did not have a right to citizenship in the first place.

“It’s like telling me I’m denying you transportation because you can’t steal my car,’’ he said. “It’s not your car.’’

Pearce said those who pushed the 14th Amendment said it was designed to overrule the 1857 Dred Scott decision wherein the U.S. Supreme Court declared that all blacks, both slave and free, could never become citizens of the United States.

“It was a terrible decision,’’ Pearce said. “It did not recognize African-Americans as real people, as humans.’’

He said illegal immigrants were never considered an issue.

“There were no illegal immigrants at the time,’’ he said.

But Pearce said a series of court decisions weakened the original intent. One occurred as far back as 1898, when the high court said the U.S.-born child of Chinese immigrants who were not citizens was entitled to citizenship.

That, he said, makes no sense.

“It’s against the law to enter, it’s against the law to remain,’’ Pearce said. “Yet we’ve created one of the greatest inducements for you to break our laws, and that’s a declaration of citizenship where you’re entitled to all the benefits.’’

As backing for his argument, Pearce pointed out the 14th Amendment makes citizenship automatic for those who are born in this country and “subject to the jurisdiction’’ of the United States.

Sinema, however, said that proves her argument.

She said the only foreigners not subject to the jurisdiction of this country are diplomats who have immunity from U.S. laws. Sinema said that is why a child born to a foreign diplomat does not get U.S. citizenship.

Conversely, Sinema said foreign residents who commit crimes are subject to state and federal laws.

Pearce acknowledged the 14th Amendment specifically gives Congress the right to enact laws to define and refine exactly what the amendment says. Congressional action would eliminate the need for each state to enact laws. And it also likely would short-circuit the need for a protracted legal fight.

But he doesn’t see that as a realistic alternative.

“How long are we going to wait on Congress?’’ Pearce said.

“It’s been misapplied for 100 years,’’ he continued. “Should we wait another 100 years?’’

Pearce said his views against what said amounts to citizenship by GPS location of birth were recognized even after that 1989 Supreme Court ruling. Native Americans, he said, were not considered citizens until congressional action in the 20th century despite the fact it was clear they were born within the boundaries of the United States.

Sinema, however, said that proves nothing.

“What it proves is, at that time, American Indians were not considered people,’’ she said. “They had no legal status.’’

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