- The Washington Times - Thursday, August 20, 2015

Birthright citizenship, an issue long kicked about in Republican circles, has leaped to the forefront of the political debate, with Republican presidential candidate Donald Trump leading the charge and drawing fierce fire from critics who say he and his fellow candidates are messing with a fundamental principle of American history.

The legal reality is much murkier, shrouded in historical roots of the 14th Amendment to the Constitution, which dealt with slaves, citizenship and equal rights — but the debate has exploded into the forefront of the presidential conversation.

This week, former Florida Gov. Jeb Bush, who opposes changing birthright citizenship, took fire for using the term “anchor babies,” which immigrant rights activists say is offensive. Some of these activists also accused Mr. Trump of encouraging hate crimes, saying they’ve seen a spike in abusive emails since the billionaire businessman launched his campaign with a promise to get tough on immigration enforcement.

“We have always received hate mail from extremists for being Latinos and undocumented, but since Trump’s rhetoric toward immigrants started escalating, it has become much more intense,” said Cesar Vargas, co-director of the Dream Action Coalition, which advocates for so-called Dreamers, younger adults who were brought to the U.S. illegally as minors.

Mr. Trump’s six-page crackdown plan included calls to build more fencing, require illegal immigrants to go home before being readmitted with legal status and to end the policy granting automatic citizenship to almost everyone born in the U.S., including to illegal immigrant mothers.

The idea of ending birthright citizenship through legislation has been kicked around for years, and was even part of a 1993 bill introduced by current Senate Minority Leader Harry Reid, Nevada Democrat.

A decade ago, House Republican leaders formed a task force that brought together both sides of the Republican immigration debate, and they agreed on the need to try to halt birthright citizenship.

But Mr. Trump’s call has pushed the issue further in the public debate — and spurred a feverish backlash.

Opposing him are a number of his fellow candidates, who have reaffirmed their support for birthright citizenship in the face of his calls, yet again dividing Republicans on another thorny immigration topic.

“It is in our Constitution; it has been in our Constitution for a very long time. And, actually, it would take a constitutional amendment to change it,” former Hewlett-Packard CEO Carly Fiorina told Fox News this week.

Ohio Gov. John Kasich, who previously opposed birthright citizenship but now supports it, defended his flip-flop at a town hall in New Hampshire Wednesday.

“I think birthright citizenship is just part of the Constitution,” he said, adding that raising the issue was “throwing a wrench in what we want to do to solve this problem.”

The 14th Amendment guarantees that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.” But what that means in practice is less settled than Mr. Kasich and Ms. Fiorina suggested.

The key question is what the amendment’s drafters meant when they wrote about persons “subject to the jurisdiction” of the government. The Supreme Court has ruled that it applies to legal immigrants’ children, and many lawyers assume that means it would cover illegal immigrants as well.

But other lawyers said the courts would have to grapple with that nuance, since illegal immigrants could well be considered outside the jurisdiction of the government.

“The court has never actually held that anyone who happens to make it to U.S. soil can unilaterally bestow U.S. citizenship on their children merely by giving birth here,” John C. Eastman, founding director of the Claremont Institute Center for Constitutional Jurisprudence, testified to Congress earlier this year at a hearing on the subject.

“Although such an understanding of the 14th Amendment has become widespread in recent years, it is not the understanding of those who drafted the 14th Amendment, or of those who ratified it or of the leading constitutional commentators of the time,” he said.

As many as 400,000 babies are born to illegal immigrant mothers each year, according to the Center for Immigration Studies.

Birthright citizenship is common in the nations of the Western Hemisphere, but rare in the major industrialized countries elsewhere.

Those who want to change automatic citizenship say Congress could pass a law rewriting the policy, which would finally place the issue squarely before the courts as a test, which is the crux of Mr. Trump’s call.

“I’d much rather find out whether or not anchor babies are actually citizens, because a lot of people don’t think they are,” he told Fox News anchor Bill O’Reilly earlier this week. “We’re going to test it out.”

For now, the divisions within the GOP threaten its standing among Hispanic voters and immigrant rights advocates, Democrats said this week. They said that’s true even of candidates who support birthright citizenship, such as Mr. Bush, whom they blasted for referring to the children involved as “anchor babies.”

“This pattern of hateful rhetoric has officially passed the point of extremist words and has turned into alarming action,” said Frank Sharry, executive director of America’s Voice, a leading advocacy group. “This is more than just bad politics. When political debate encourages an atmosphere where hateful actions and hurtful rhetoric get mainstreamed, it’s bad for the country.”

Activists pointed to news reports out of Boston that a suspect in the beating of an older Hispanic man told police they agreed with Mr. Trump that illegal immigrants should be deported.

Asked about that incident Wednesday, Mr. Trump said it “would be a shame.”

“I will say that people who are following me are very passionate. They love this country, and they want this country to be great again,” he said.

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