A costly loophole

Rep. Gary Miller Contributor
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A loophole in our nation’s laws is being exploited and consequently costs American taxpayers $5.63 billion annually at the federal level.  What is worse, this same loophole costs state and local taxpayers much more.  In my home state of California, taxpayers are paying $8.3 billion this year for this ongoing problem.  This is at a time when the Golden State has a $20 billion budget shortfall.

So what exactly is costing American taxpayers billions annually?  The birthright citizenship loophole.

As originally written, the citizenship clause in the Fourteenth Amendment was intended to guarantee citizenship to all freed slaves.  However, birthright citizenship has since become an attractive incentive for illegal immigration and birth tourism.

In 2010, approximately 361,000 births in the United States were to illegal immigrant mothers.  Currently, there are 3.4 million U.S.-born children of illegal immigrants between the ages of 5-18, which represents over 70 percent of the population of children of illegal aliens.  The cost of childbirth and prenatal care is often paid for by American taxpayers, and illegal immigrant parents can and do receive government benefits through their U.S. citizen child.

In addition, the number of U.S. births to non-resident mothers has dramatically risen in recent years.  Among the foreigners who have given birth in the United States are “birth tourists,” women who travel to the United States with the explicit purpose of obtaining citizenship for their child.  While this distasteful practice is not currently a significant cost burden, the impact of this phenomenon will be felt in the years to come.

When observing the debate surrounding the Fourteenth Amendment, it is clear that the authors intended only to grant citizenship to persons born here who were “subject to the jurisdiction” of the United States.  In fact, one of the authors, Senator Jacob Howard, stated that the Fourteenth Amendment would:

“not include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

The authors also understood the phrase “subject to the jurisdiction thereof” to have the same meaning as the phrase “and not subject to any foreign Power,” included in the Civil Rights Act of 1866.  It would be difficult to argue that illegal immigrants and temporary visitors are not subject to a foreign power or that they do not owe allegiance to anybody but the United States.

Simply put, it is unfair to grant birthright citizenship to children of illegal immigrants because it undermines the intention of the Fourteenth Amendment and rewards those that have recklessly broken our nation’s immigration laws.

By granting children of illegal immigrants citizenship, the child can eventually anchor an entire family in the United States, even though they gained access to our nation illegally.  In addition, the child – and potentially their family – will have access to a wide array of taxpayer-funded benefits, including access to a U.S. education and recently enacted government-run health care.

We need to end the practice of birthright citizenship because it misconstrues the U.S. Constitution and also facilitates illegal immigration.  Interestingly, Section 5 of the 14th Amendment explicitly delegates to Congress the right to legislate how the provisions of the amendment are to be applied, so Congress could legislatively undo this misinterpretation.

To remedy this, I am the first sponsor of H.R. 1868, the Birthright Citizenship Act.  This legislation would deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.

As our national debt continues to soar and has become unsustainable, now more than ever we should close this egregious loophole that is adding to our dismal fiscal situation.  The United States is one of the few remaining countries to grant citizenship to all children born on its soil and it is time to put an end to this practice.

Rep. Gary Miller represents California’s 42nd Congressional District and is the first sponsor of H.R. 1868, the Birthright Citizenship Act.