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More About Republicans, Immigration And The 14th Amendment

by Roger Algase

The support by Republican Congressional leaders for holding "hearings" on abolishing the 14th Amendment's guarantee of birthright US citizenship is just the latest indication of their intent to keep race at the forefront in the upcoming election. My discussion of the leading Supreme Court case on this issue in the August 9 ID shows, if nothing else, how close the connection is between birthright citizenship and racial equality in America. If one goes, so does the other.
This attempt to strike at the foundation of what makes America America is also an indication of what the Republicans have in store for us if they take control of Congress this fall. The last time the Republicans controlled the House of Representatives, in the fall of 2005, they passed HR 4437, an anti-immigrant bill that would have made Arizona's immigration law look like CIR and the DREAM Act together by comparison.
That bill, for example, would have made it a felony punishable by five years in prison for a legal immigrant to send a routine change of address form to the wrong immigration office by mistake. It would also have been a felony for a lawful permanent resident to walk around the block without carrying his or her green card. It might even have made it a felony for a US citizen to give a tip to a waiter who lacked legal status, let alone actually providing legal or medical assistance to such a person, including one's own spouse, parent or child.
If the Republicans take control of Congress, or either house, this fall, reviving proposals like these will, without the slightest doubt, become their first and immediate order of business. Unlike state laws such as the one in Arizona, which can be attacked on federal preemption grounds, it is obviously impossible to use preemption to invalidate a federal law. This makes the possibility of the Republicans taking control of Congress extremely dangerous for the future of immigration in this country.
Of course, President Obama would be expected to veto any such bill, if passed by Congress. Which Democrats would be the first to help him beat back the inevitable Republican attempt to override the veto? Ben Nelson? Blanche Lincoln? Mary Landrieu? And what happens if such a bill passes after the 2012 election and reaches the desk of President Palin, President Beck, President Limbaugh or President Gingrich?
Of course, amending the Constitution to abolish the 14th Amendment is not going to happen. But it is not necessary to do this in order to take away birthright citizenship from any minority group that the bigots du jour (sorry for the foreign expression) want to kick out of the country. All that is needed is to overrule Wong Kim Ark.
Is it beyond imagination that the same reactionary Supreme Court bloc which, by judicial activist fiat, rewrote the 2nd Amendment to eliminate the phrase "well ordered militia" might decide to use the phrase "subject to the jurisdiction" of the United States in order to rewrite the 14th Amendment? As I mentioned on August 9, the dissent in Wong Kim Ark (consisting of two justices), tried to do exactly that a little over 100 years ago. There already are two justices today who might be inclined to do the same thing, on the basis of their voting records on immigration and other issues.
We may be only three Supreme Court votes away from abolishing birthright citizenship without a constitutional amendment. Under the reasoning of the dissent in Wong Kim Ark, President Obama, even without the "birther" fantasy that he was born outside the US, would not be a US citizen by birth in the US because of his father's foreign "allegiance". Maybe the president should start packing his bags.

About The Author

Roger Algase, Esq. is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.