State lawmakers filed legislation Thursday designed to deny citizenship to children of illegal immigrants, the first step to what they admitted will be a protracted court fight.
The four bills — two in each chamber — require at least one parent to prove either citizenship or legal residency in order for the child to be recognized as a citizen of Arizona and, by extension, the United States.
Parents who can provide the necessary documentation will get a birth certificate certifying the child as a citizen. Failure of a parent to provide that proof would result in issuance of a birth certificate stating it is not proof of citizenship.
But the real teeth in the measure is part of the package that allows states to enter into compacts with each other to recognize the two types of birth certificates and treat the person accordingly.
Rep. John Kavanagh, R-Fountain Hills, chief sponsor of the House version, said if the measures become law he expects a court to issue an injunction blocking their enforcement. But Kavanagh said that’s exactly what he wants, starting “a rational procedure of having the Supreme Court finally decide what was the intent of those who wrote the 14th Amendment.
Attorney Stephen Montoya, one of the foes of the measure, said that will be a waste of time and resources. He said the question of citizenship by virtue of birth in this country is long-settled law and Arizona will lose that legal battle.
But Sen. Ron Gould, R-Lake Havasu City, who is carrying the House version, said there never has been a clear Supreme Court decision on the scope of the amendment.
Foes of the measure went beyond arguing its legality.
Talking about the plan, Rep. Catherine Miranda, D-Phoenix, said “bigots have always surfaced during difficult times in the history of this country.’’ She compared the deportation of illegal immigrants to the Nazi Holocaust.
“This bill is not only ill-timed but it’s racist,’’ said Rep. Bruce Wheeler, D-Tucson.
And Sen. Steve Gallardo, D-Phoenix, drew parallels between creating two types of birth certificates to the discriminatory practices against blacks.
“This takes us back to the time where we had separate drinking fountains, one for whites and one for blacks,’’ he said. “This goes back to the time when we had separate public swimming pools, one for whites, one for blacks.’’
From a legal perspective, the verbiage at issue is simple. The 14th Amendment says, “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.’’
What’s at issue is that question of “subject to the jurisdiction.’’
Foes of the amendment say illegal immigrants and their children are subject to the jurisdiction of the United States.
“Ask any first-year law student: Anyone who the police can apprehend in Arizona is subject to the jurisdiction of Arizona,’’ said attorney Stephen Montoya.
Kavanagh, however, said that’s not what the drafters had in mind.
“They clearly stated in discussions that you owe sole allegiance to the United States,’’ he said.
Kavanagh said that was confirmed in early rulings on the scope of the amendment. For example, he said, the high court denied citizenship to the child of a Native American couple “because the parents owed their allegiance to the sovereign tribe.’’
Gould said there is no way that the crafters of the amendment intended that citizenship be applied to those who entered the country illegally.
“You’ve got to bear in mind that when they voted on the 14th Amendment we had open immigration,’’ he said. He also argued that none of the U.S. Supreme Court decisions issued since then has clarified the issue.
There was an 1898 case involving Wong Kim Ark, born in San Francisco in 1873 to parents who were not U.S. citizens. In that case, the nation’s high court concluded he was, in fact, entitled to citizenship even though his parents were “subjects of the Emperor of China.’’
But the justices said that his parents had “a permanent domicile and residence in the United States,’’ a situation Kavanagh said is different from those who entered and remain in this country illegally.
The two pieces of legislation are designed to put that issue squarely before the court.
The first bill, HB 2561 and SB 1309, spell out that citizenship is reserved for “a person who owes no allegiance to any foreign sovereignty.’’
Separately, HB 2562 and SB 1308 direct the governor to enter into a compact with other states that pass similar laws with a requirement that each state “shall make a distinction in the birth certificates, certifications of live birth or other birth records issued in the party states, between a person born in the party state who is born subject to the jurisdiction of the United States and a person who is not born subject to the jurisdiction of the United States.’’
The anticipated court fight is just part of the battle, though: For the compact to take effect it needs to be ratified by Congress. But the legislation defining citizenship is not contingent on federal approval.