When President Donald Trump announced his latest U.S. Supreme Court pick, Brett Kavanaugh, in July, influential groups in the organized anti-immigrant movement could barely contain their excitement.
Tipping the balance to the right could result in the court taking up some important immigration cases, including birthright citizenship.
For decades, the anti-immigrant movement has openly attacked birthright citizenship, the first clause in the 14th Amendment to the Constitution. It 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." Nativist groups argue that birthright citizenship should not apply to children born in the United States to undocumented parents. Key anti-immigrant groups have referred to the children of undocumented immigrants by the derogatory term “anchor babies,” or in the post-9/11 era, potential “terror babies.”
Trump’s presidency to date has seen major players in the anti-immigrant movement gain unprecedented access and influence over immigration policy in the United States. Should SCOTUS to dismantle birthright citizenship, it would be a victorious end to a campaign that began almost four decades ago.
Early attacks on the 14th Amendment and the birth of the anti-immigrant movement
In 1979, white nationalist John Tanton, an environmentalist turned population control and eugenics advocate, started his flagship group, the Federation for American Immigration Reform (FAIR). In the early 80s, Tanton quickly established a legal arm, the Immigration Reform Law Institute (IRLI), along with a think tank, the Center for Immigration Studies (CIS). These three groups exist today, along with NumbersUSA, as the four most influential anti-immigrant groups in the country.
Tanton and his allies’ attacks on birthright citizenship began early. In 1994, Tanton and another white nationalist Wayne Lutton published the tract, The Immigration Invasion, which blamed immigrants for virtually all of America’s ills. Towards the end of the book, Tanton and Lutton offered a lengthy series of recommendations for what needed to be done to stop the “invasion.” “End the absurdity of granting U.S. citizenship simply by virtue of being born on U.S. soil, even if the parents are illegal aliens. Scholarly opinion holds that this does not require a constitutional amendment,” Tanton and Lutton wrote.
The “scholarly opinion” Tanton and Lutton refer to is a 1985 book published by Peter H. Schuck and Rogers M. Smith titled, Citizenship Without Consent. The book, often citied by the anti-immigrant movement, doesn’t call outright for the birthright citizenship clause to be stripped, but rather interprets it to mean that Congress can decide who is granted citizenship.
In 1995, Tanton sought money from the Cordelia Scaife May Family Trust to help fund efforts to draft a legislative solution to end birthright citizenship for undocumented immigrants. Tanton cited Schuck and Smith’s book and said the money would go towards helping the professors draft the legislation. Scaife May was a close friend of Tanton’s and funded his network of anti-immigrant groups to the tune of tens of millions of dollars through her Colcom Foundation, set up before her suicide in 2005.
Also in the mid-‘90s, CIS published research examining the citizenship clause rules in 38 countries around the world. Excerpts of the report were published in Tanton’s quarterly journal, The Social Contract . Wayne Lutton, who went on to edit the journal, referred to children born in the United States to undocumented parents as “anchor babies” in a 1996 Social Contract piece, one of the earliest uses of the term. Lutton wrote, “As illegal aliens, the parents of such children could be reported to federal authorities and potentially face deportation.” Lutton also cited Citizenship Without Consent.
Another seminal book for the anti-immigrant movement was published in 1995. Authored by white nationalist Peter Brimelow and written with funding from Tanton, Alien Nation also called for an end to birthright citizenship. “In an era of mass movement, the fact that the children of even illegal immigrants are automatically U.S. citizens is plainly outdated. It must be ended, by amending the Constitution if necessary,” Brimelow wrote.
In 1996, FAIR launched Borderline, a TV show that ran on NET, a satellite TV station put together by archconservative and anti-gay activist Paul Weyrich. FAIR invited a number of white nationalists on the show, which examined a variety of immigration topics. Episode 29 of the series was devoted to birthright citizenship and featured Rosemary Jenks, who went on to work for CIS and currently is working for NumbersUSA.
Various legislation was introduced throughout the 1990s in attempt to undermine birthright citizenship. One such bill, the Citizenship Reform Act, was introduced in 1995 by U.S. Representative Brian Bilbray of California, who went on to work as a lobbyist for FAIR in the early 2000s and now serves as co-chair of FAIR’s advisory board.
The 2000s: The anti-immigrant movement’s attacks on birthright citizenship become more organized
In 1999, the House Immigration Reform Caucus (HIRC), was founded. It was spearheaded by U.S. Representative Tom Tancredo of Colorado, one of the nativist movement’s staunchest allies. Tanton saw the importance of the Caucus. In 2001, he described how recruiting Republicans was "an idea that can actually move the battle lines … in our favor."
"The goal is to educate these members about the political consequences of high-level immigration, to recruit at least some legislators to the immigration caucus in the House and to get them to act and vote accordingly," Tanton wrote to a donor. In 2001, HIRC had less than 10 members, but a decade later, it boasted 112.
One of the goals of HIRC was to tackle birthright citizenship. Members repeatedly introduced bills to tweak the law. In 2005, the then 92-member strong Caucus attempted to force a vote on legislation that would revoke birthright citizenship. Lamar Smith, another staunch nativist ally. told the Los Angeles Times in 2005, "Illegal immigrants are coming for many different reasons. Some are coming for jobs. Some are coming to give birth. Some are coming to commit crimes. Addressing this problem is needed if we're going to try to combat illegal immigration on all fronts." The measure failed. In 2006, Tancredo said of birthright citizenship, “It is a terrible public policy to reward people who come into this country by giving citizenship to their children (who then, in turn, can bring them into the U.S.).”
In 2007, State Legislators for Legal Immigration (SLLI) was founded, a similar venture to the HIRC but at the state level. Later in the year, SLLI announced it had entered into a “working partnership” with IRLI. SLLI debuted in 2007, but it wasn’t until 2011 when the group of legislators representing 40 states turned their attention towards the 14th Amendment.
The group’s founder, Pennsylvania Rep. Daryl Metcalfe, and other SLLI members from around the country gathered in January 2011 in DC to “unveil historic model legislation to correct the monumental misapplication of the 14th Amendment of the U.S. Constitution.” SLLI members were joined by lawyers from IRLI including Kris Kobach, the man responsible for drafting Arizona’s draconian SB 1070, a bill signed in 2010. Russell Pearce, another SLLI member from Arizona who introduced SB 1070, did not attended the press conference but provided the following quote for the press release, “The law is clear, the history is clear, the 14th Amendment is clear; natural-born citizens, are those born in the country, of parents who are citizens, for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
SLLI’s approach, cooked up with the help of IRLI and Kobach, was two-fold: first, lawmakers would introduce these bills in order to redefine citizenship on the state level. Then they would challenge the birthright citizenship federal law through a state compact declaring that there is a difference between children born to undocumented immigrants and others. For the compact to take effect, Congress would have to approve it. Kobach was a major proponent of this strategy. According to the New York Times, Kobach noted at the press event that the laws were carefully written to “revive the concept of state citizenship.”
The state level legislation failed just badly as its federal counterparts, but the war would continue.
Renewed optimism in the Trump era
In August 2015, then-candidate Donald Trump released his immigration plan to the country, and it called to “End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s wrong policy, including Harry Reid who said ‘no sane country’ would give automatic citizenship to children of illegal immigrants.”
In April 2016, CIS issued a seminal document, “A Pen and a Phone – 79 immigration actions the next president can take.” Point 14 read, “Give a high-profile speech announcing that the United States will no longer tolerate birth tourism and the fraud committed against visa processing officials who are misled as to the perpetrator's true intention of traveling to the United States. It must be made clear that perpetrators will be fined and/or jailed…” before concluding, “The Supreme Court has never ruled on the question of whether children born to tourists are to be considered U.S. citizens at birth.” Point 15 goes one step further, “Establish a policy of denying nonimmigrant visas to women in the third trimester of pregnancy, absent compelling circumstances and a certificate attesting that it is safe to travel for the woman and fetus, to be issued only by a pre-approved list of competent medical authorities in the country of origin.” Since taking office, Trump has implemented a number of the CIS suggestions.
Not to be outdone, FAIR published a similar report following the election in an attempt to push the President-elect to be true on the nativist policies he pledged during his campaign. Page 13 of FAIR’s report said the following about birthright citizenship:
"Based on a misinterpretation of the 14th Amendment, birthright citizenship is the practice of automatically granting U.S. citizenship to anyone born in the United States, regardless of the parents’ immigration status. America is the only industrialized nation that permits the children of illegal aliens to automatically become citizens. This policy encourages manipulative practices like birth tourism, where pregnant aliens will travel to the United States for just long enough to give birth and, once their child’s citizenship has been verified, return home. We must eliminate this magnet for illegal immigration .”
More important than the recommendations, however, is the shift on the Supreme Court since Trump has taken office. The rightward movement of the bench is clearly seen as a green light by nativists to push cases that could bring birthright citizenship before the court. In recent months, attention has turned to a case in Utah, where a family of American Samoans are arguing that because they were born in American Samoa, they are in fact American citizens under the birthright citizenship clause. IRLI filed an amicus brief in the case against the family, arguing that since 1898 in the case of United States v. Wong Kim Ark, the 14th Amendment has been misinterpreted. Kim Ark was born in the United States and was granted U.S. citizenship by the Supreme Court despite the fact that his non-native born parents were banned from naturalizing because of the racial laws.
IRLI hopes that if the Utah court rules against the American Samoans, the climb towards the Supreme Court and ultimately a ruling on birthright citizenship could take place.
During a 2011 interview with the Washington Post, Walter Dellinger, a former assistant attorney general and former acting solicitor general under President Clinton, spelled out why anti-immigrant groups are targeting the birthright citizenship clause. "This matter has been raised in every instance in a racial context," Dellinger said. "That's why we wanted a simple rule: Every new girl or boy born in this country is simply, indisputably, an American."
The nativist organizations who were targeting the 14th Amendment in the 1990s are the same ones doing it today — groups founded by a white nationalist who once wrote that “for European-American society and culture to persist requires a European-American majority, and a clear one at that."
Photo illustration by SPLC