In Arizona, Challenge to Birthright Citizenship Focuses on the Patriotic Loyalties of Newborns


Last week, I wrote about the new bill in Arizona, HR 2561, that seeks to define who is a citizen of that state. The bill bars from citizenship the children of undocumented immigrants, even if those children would be US citizens under the 14th Amendment. In my earlier piece, I looked closely at the law. Now I would like to examine the reasons the sponsors of the bill give for proposing it in the first place.

The primary sponsors of the bill, and its companion in the Arizona State Senate, SB 1309, are two state Republicans: Sen. Ron Gould, from the resort town of Lake Havasu and Rep. John Kavanaugh.

Senate President Russell Pearce, who was the principal sponsor of SB 1070, has been a long-time proponent of this legislation, and attorney Kris Kobach, who drafted SB 1070, helped write this legislation as well. Senator Gould told the Arizona Republic he hoped that when the bills are passed, immigrant rights groups sue the state so that the Supreme Court will issue a decision that will take away citizenship from children of undocumented immigrants. “The court needs to rule on this so we can figure out how to treat these kids,” Gould said.

Such a decision by the Supreme Court would impact the children of immigrants everywhere, from Montauk to Santa Monica.

The supporters of the bill see the attack on the rights of the children as a way of punishing undocumented parents for entering the United States illegally. “The parents broke the law,” Senate President Pearce told the Republic, and “[t]here are consequences of breaking laws.”

The fact that the consequences that Pearce proposes will be borne by innocent children doesn’t seem to concern to him.

The Arizona Republic estimated that more than 13.000 children are born to undocumented immigrants each year in Arizona. This means that within a decade, more than 100,000 children in the state will be babies without a state, all to punish their parents. We can expect Immigration and Customs Enforcement raids at the nursery schools, I suppose.

Proponents of the bill also say they back it because they believe that newborn American citizens should not have divided loyalties, i.e. that the child of an undocumented immigrant cannot be truly loyal to the United States, since his or her parent’s country of birth can claim the baby as a citizen.

This argument is mere stuff and nonsense.

First of all, we all know that newborns worry a lot about dirty diapers and mother’s milk and not at all about transnational loyalties. In this respect, the offspring of a couple descended from the Mayflower Pilgrims isn’t any different from the child of Mexican ranch workers arrived in Pima County a few years ago. It is the process of education, civic participation, and welcoming that develops loyalty to the United States, not the immigration status of a child’s parents. Thus it has been since the founding of the Republic.

Second, if supporters of the bill are concerned about the possibility of the child having “dual loyalties,” they need to greatly expand their legislation’s scope.

The bill says that to be a citizen of Arizona, a newborn must be the “child of at least one parent who owes no allegiance to any foreign sovereignty.” It defines an allegiance-free parent as one who is either a U.S. citizen or a lawful permanent resident.

As I pointed out last week, permanent residents, also known as “green-card holders,” are by definition not US citizens and are. in almost all cases, citizens of another country. In other words, they owe allegiance to a “foreign sovereignty.” Same with parents who are in the United States legally on employment-based visas.

So it seems that even the children of legal immigrants should be denied citizenship under the “loyalty” test. This would make the child deportable, even while the parents would be free to live legally in the United States.

But, if the undivided loyalty of a newborn is at issue, we should remember that even the child of a US citizen may also be a citizen of a foreign country and therefore owe that country allegiance.

For example, if a US-citizen man married an Israeli permanent-resident woman who lives in Arizona, under the laws of Israel, the child is Israeli.

This is not peculiar to the state of Israel: Many countries provide citizenship to children of their nationals born abroad. In fact, even the United States does this for a child born outside of the country to an American mother.

There are thousands of people walking around every day in the US who are citizens of other countries without even realizing it. They don’t feel any “divided loyalty.” They feel like Americans.

There are even immigrants who naturalize and become American citizens, but are still citizens of their country of origin.

A famous example is Arnold Schwarzenegger. He retained his Austrian citizenship even after he became governor of California. When he allowed an execution to take place in California, the Austrian Green Party called for revocation of his citizenship because they said he gave the country a bad name.

You may point out that when an immigrant naturalizes, he or she renounces his birth citizenship. True, but many foreign countries don’t recognize this renunciation and continue to consider the naturalized American to be a citizen of the country of origin.

Were we to consider the children of all of these folks to be undocumented immigrants, we’d have to start rounding up tens of millions of people who were born here.

Image courtesy of Mrs Hilkson via Flickr.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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