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Sen. Hits Obama's Exec. Action With Attack On Citizenship By Birth. By Roger Algase

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As predicted in my November 21 post, it has not taken at least one immigration opponent very long to attack the 14th Amendment's guarantee of US citizenship at birth to virually every child born in the United States, regardless of parents' immigration status, as a reaction to President Obama's announcement on immigration executive action.

The Hill
reports on November 22 that Senator David Vitter (R-LA), has announced that he still supports a resolution that he introduced in 2011 along with Senator Rand Paul (R-KY) providing that a person born in the US would only be a US citizen by birth if at least one parent was a USC, LPR or member of the armed forces. It is noteworthy that this extreme resolution would not only deprive the US-born children of people who lack legal status in the US of citizenship by birth, but also do the same to children of parents who are in the US with legal visas, if they do not have green cards or US citizenship.

Senator Vitter said:

"This is the only industrialized country where just because an individual is born here physically, he or she is a citizen."

See The Hill: GOP Senator: 'Absolutely crazy' Congress represents non-citizens

http://thehill.com/blog/blog-briefin...s-non-citizens

The Senator has obviously not read the leading US Supreme Court decision on 14th Amendment birthright citizenship, U.S. vs. Wong Kim Ark, which has a lengthy discussion of the doctrine of birthright citizenship, as recognized in numerous (though admittedly not all) advanced countries. It is not exactly as if this is a new theory. The above case was decided in 1898.

Senator Vitter also said that he is looking for ways to block President Obama's executive action (not executive order, as some people misunderstand it to be) on immigration as announced on November 20. Evidently, in the view of some immigration opponents, going back to the pre-Civil War, pre-14th Amendment time of Dred Scott v. Sandford (1857) which held that people of color could never become US citizens, is the right way to do that.

I will examine the Wong Kim Ark decision in more detail in an upcoming post. Even though attacking birthright citizenship for children of parents who were not USC's or LPR's at the time of birth may not exactly endear GOP candidates to millions of Hispanic and other minority voters who would have been deprived of their US citizenship if Vitter's proposal had been the law (or might be deprived of citizenship retroactively it were ever to become the law) in the 2016 election, it might actually be one of the few avenues of opposition to the president's latest executive action on immigration that contains even a minimal degree of rationality from a legal perspective.

To put it differently, broad executive power over immigration rests on more than 120 years of Supreme Court precedents, while birthright citizenship for every child born in the US rests on a single Supreme Court case, decided 116 years ago, that could conceivably risk being overturned by today's reactionary Supreme Court majority. That does not mean that there is any valid reason for revisiting, let alone overturning, this venerable decision which is at the heart of American democracy.

But such considerations have not always been enough to prevent today's right wing Supreme Court majority from overturning other precedents which were also crucial to preserving the democratic institutions on which all immigrant rights depend, according to our law.

I continue to predict that we may be seeing a lot more in the way of attacks against birthright citizenship from the anti-immigrant side during the coming two years.
___________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years. His personal attention to each client's case and his careful legal research and preparation have helped people from many parts of the world achieve successful results and attain their goals of living and working in America with legal visas and green cards. His email address is algaselex@gmail.com


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Updated 11-24-2014 at 07:27 PM by ImmigrationLawBlogs

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