When I first met the late Leo Berman he was a member of the Arlington city council, and I was covering the local government for the Fort Worth newspaper. Arlington had no planning and zoning commission, so all those issues came directly to the council. Every week, hours were spent rezoning property in the fast-growing bedroom community between Dallas and Fort Worth. Almost each meeting, there would be a piece of property next to a major roadway that was zoned agricultural that the owners wanted changed to commercial. The neighbors would show up in protest. There was a beautiful oak on the property that their children loved to climb. Leo, with all the sincerity in his heart, would tell them that he understood how much they and their children loved that tree, but it belonged to a corporation and if that corporation wanted to cut the tree down, it had a right to do so.
Years later, Leo had retired from his oil company job and moved to Tyler, where he won election to the Legislature. By that time I was covering the pink dome for the Houston Chronicle. Leo very quickly became the leader of the anti-illegal immigration crowd. Leo’s top issue was birthright citizenship—the legal concept that if a person is born in the United States they are automatically a citizen, even if his or her parents are not living here legally. President Trump this week said he may sign an executive order to end birthright citizenship, even though it has been part of the 14th Amendment to the Constitution since 1868. The key part of the amendment reads: “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.”
Conservatives such as Leo promoted the idea that undocumented immigrants in the United States were having babies so they would be less likely to be deported. Who would rip a mother away from her U.S. citizen child to deport her? They called these children “anchor babies.” (By extension, some conservatives such as U.S. Representative Louis Gohmert of Tyler foisted out the idea that Islamic radicals were having babies in the United States to raise citizens as sleeper cells. He called them “terror babies.”) Personally, I find both terms dehumanizing. But there is no doubt that undocumented immigrants are having babies in the United States. The Dallas Morning News in 2010 estimated that there are 60,000 births each year in Texas to mothers who are not authorized to live in the country.
“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.”
— U.S. Constitution
The idea of ending birthright citizenship is very popular with conservative Republicans, and Leo carried legislation several sessions to declare that Texas would not recognize such citizenship for state services. Leo told me that he realized his bill, if it became law, would immediately be enjoined in federal court. What he wanted was a lawsuit to take the issue up to the U.S. Supreme Court. The phrase in the 14th Amendment “subject to the jurisdiction” was inserted to keep the children of foreign diplomats and native American tribes with their own nations from being able to claim citizenship. Because undocumented immigrants are not legally in the United States, then they are not subject to the jurisdiction of the United States and therefore do not enjoy birthright citizenship unless at least one parent is a citizen.
Leo could not even get his legislation out of a Texas House committee in 2009, despite widespread buzz on the topic. He died in 2015 after leaving the Legislature.
After President Trump declared he was going to end birthright citizenship by executive order, I saw a number of news stories that said he cannot do that by executive order. That is probably true. But like Leo Berman, what Trump really is doing is creating a crisis that will demand action by the Supreme Court—plus the fact that this is a red meat issue for the Republican base vote in a hotly contested midterm election. The truth is that this is not settled law, even though the idea has been accepted in general practice for well over a century.
Consider the uncertainty that eliminating the concept of birthright citizenship would have.
Start a step away from illegal immigration. Republican presidential candidates Barry Goldwater, John McCain, and Ted Cruz were not born in the United States. Goldwater was born in the Territory of Arizona; McCain in the Panama Canal Zone; and Cruz in Canada. The Constitution requires that a president must be a “natural born citizen” of the United States. While none of their credentials were ever fully litigated, each was considered eligible for the presidency either because Arizona was under the jurisdiction of the United States or because they had at least one U.S. citizen parent.
The phase “natural born citizen” was included in several Supreme Court cases. But those involved children of British parents born in the United States while they were legally visiting, or the children of a Chinese couple living in the United States. The Chinese couple’s son became “at the time of his birth a citizen of the United States.”
Michael Anton, a one-time national security adviser to Trump, has argued that birthright citizenship should not apply to undocumented immigrants, noting that in the 1866 debate over language that would become the 14th Amendment: “Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined ‘subject to the jurisdiction’ as ‘not owing allegiance to anybody else’ — that is, to no other country or tribe. Senator Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.'”
But in one substantial Supreme Court case involving Texas—Plyer v. Doe, in 1982, the high court ordered Texas to educate all children living in the state, regardless of their legal resident status or citizenship. “No plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful,” wrote Justice William Brennan.
Turning to birthright citizenship in Texas, if the Morning News story from 2010 is correct, then that means about 480,000 children have been born in the state since the beginning of this decade along and might be subject to deportation. In the Deferred Action for Childhood Arrivals program there are about 124,000 Texas youth protected from deportation. Because the DACA participants are young adults, there should be a high expectation that they now are reaching an age to have their own children, born in the United States but denied citizenship under the concepts promoted by conservatives.
Any program that tried to deport that many Texans would destabilize the state economy. In reality, sanctuary cities, family separations, and ending birthright citizenship has little to do with deportation. As the Atlantic recently noted in an article on Immigration and Customs Enforcement, the idea is to create a hostile environment for immigrants. Kris Kobach, the Kansas secretary of state, once convinced the Texas city of Farmers Branch to make it illegal for landlords to rent apartments to undocumented immigrants. (Farmers Branch lost in federal court.) Kobach also has been the chief promoter of the idea that immigrants are voting illegally in U.S. elections. But even he recognizes that it would be impossible to depart the twelve million immigrants living in the United States without authorization. As the Atlantic quotes Kobach, “Illegal aliens are rational decision makers. If the risks of detention or involuntary removal go up, and the probability of being able to obtain unauthorized employment goes down, then at some point, the only rational decision is to return home.”
And in that, we see this is not an immigration issue, but a cultural one of driving out foreigners rather than fixing a broken immigration system. Just like those trees on vacant lots in Arlington, no matter how much it distresses the people most directly affected, if we don’t like it, we’re going to chop it down.