End Birthright Citizenship ... but How?

Republicans have recently brought up the possibility of ending birthright citizenship, America's practice of making citizens out of everyone born here, and since birthright citizenship is granted under the 14th Amendment of the Constitution, this could be a tricky process. Two prominent Republican lawmakers, Sen. Jon Kyl and Senate Minority Leader Mitch McConnell, have called for hearings on the matter; they have not having endorsed any particular method.

The question, then, is how, and what requirement would replace U.S. birth.

There are two camps on the process of ending birthright citizenship. One holds that the only way to do so is by amending the Constitution; the other holds that birthright citizenship can be ended by statute--that Congress can end it by passing a law. 

The 14th Amendment states, plainly: "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." That formulation seems quite explicit and difficult to skirt, and amending the Constitution, by design, is difficult. Sen. Lindsey Graham has suggested he may introduce an amendment to the Constitution to end birthright citizenship, but the Constitution requires (under Article 5) an amendment process initiated by two thirds of both Houses of Congress and ratification by three fourths of the state legislatures. Needless to say, such consensus on birthright citizenship does not presently exist.

Advocates of simply passing a law to the original intent of the 14th Amendment, when it was adopted in 1868--to grant and ensure citizenship for freed slaves. The statutory camp will also tell you that one of the amendment's authors, Senator Jacob Howard, stated that the amendment would (or should) not apply to children of foreign nationals. Rep. Gary Miller reproduces that quote in an op-ed at the Daily Caller, and Rep. Lamar Smith, the top Republican on the House Judiciary Committee, outlines these arguments in a post at a Politico forum.

If not U.S. birth, what would determine U.S. citizenship? Republicans have suggested that at least one of a child's parents must either be a U.S. citizen, an alien admitted for permanent residence, or an alien serving in the U.S. military, in order for a U.S.-born child to receive citizenship. That's the crux of the Birthright Citizenship Act of 2009, originally introduced by Rep. Nathan Deal before he resigned to run for governor of Georgia, which Miller is now sponsoring. The bill has 93 cosponsors, including at least one Democrat, Rep. Gene Taylor of Mississippi.

A constitutional amendment addressing birthright citizenship, according to a Senate aide, likely wouldn't enumerate citizenship requirements in the Constitution itself; rather, it would specify that Congress has the power to delineate citizenship requirements. Graham does not appear to have any language drafted yet. It's just an idea.

Most of this discussion is speculative, given Democrats' congressional majorities and the difficulties of amending the Constitution, if that's indeed what it takes to change the policy. But Republicans, and some important ones at that, seem to think it's a good policy point to raise, at least for the sake of pitching ideas to their base, so we may hear more about it yet. And if Republicans do succeed in taking over the House in November, hearings on the 14th Amendment may loom close on the horizon.