Anwar al-Awlaki and the perils of birthright citizenship

Tom Tancredo Former Congressman
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In the wake of the killing of al Qaida cleric Anwar al-Awlaki, pundits, politicians, and law professors are arguing over whether it’s constitutional for the American government to target an American citizen. Some, such as Ron Paul, have gone as far as calling the killing a potentially impeachable offense.

Lost in this debate is whether al-Awlaki was ever really an American citizen.

Al-Awlaki was born in New Mexico in 1971. Both of his parents were Yemeni citizens in the United States on student visas. As a child, he moved to Yemen along with his parents. He returned to the U.S. as an adult on a foreign student visa.

Under the current interpretation of the 14th Amendment, al-Awlaki is considered an American citizen. Section 1 of the amendment opens, “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.” The operative phrase is “subject to the jurisdiction thereof.” During the ratification debates in 1866, Senator Lyman Trumbull, who was the chairman of the Judiciary Committee, said that the phrase meant “not owing allegiance to anybody else” and that “partial allegiance if you please, to some other government” is disqualifying. It goes without saying that neither al-Awlaki nor his parents had any allegiance to America.

Senator Jacob Howard, who introduced the 14th Amendment, made it clear that the citizenship clause “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

The purpose of the amendment was to guarantee citizenship rights to the children of freed African-American slaves, not to guarantee citizenship rights to the children of illegal immigrants or temporary aliens.

This isn’t the first time birthright citizenship has been an issue in a national security-related case. In 2001, Yaser Hamdi was caught fighting with the Taliban and tried as an enemy combatant. Hamdi was born in Louisiana in 1980 to Saudi Arabian parents on temporary work visas. He returned to Saudi Arabia as an infant, but claimed U.S. citizenship and said he could not be held in front of a military tribunal. The case Hamdi v. Rumsfeld went all the way to the Supreme Court, which ruled that U.S. citizens can be tried before a military tribunal but have habeas corpus rights.

Prior to the ruling, I signed an amicus brief along with the Center for American Unity and seven other congressmen, including now-House Judiciary Chairman Lamar Smith (R-TX), noting that Hamdi should not be considered a U.S. citizen. An opinion written by Justice Antonin Scalia and signed on by Justice John Paul Stevens called Hamdi a “presumed” citizen, acknowledging that the birthright citizenship issue remains unresolved.

Automatic birthright citizenship poses problems beyond the national security realm.

First, children who receive birthright citizenship are eligible for public education and most welfare programs — at enormous cost to American taxpayers.

Second, it’s difficult to deport illegal immigrants who have children who are U.S. citizens. Many liberals claim that using the word “anchor babies” to describe the American-born children of illegal immigrants is offensive, but these are the same people who insist we can’t deport illegals who have American citizen children because it will split up families.

Finally, giving automatic citizenship to people who have children who were only born here because their parents broke the law cheapens citizenship for the rest of us.

Congressman Steve King (R-IA) and Senator David Vitter (R-LA) have introduced the Birthright Citizenship Act of 2011 to clarify that the 14th Amendment’s citizenship clause only applies to the children of U.S. citizens and legal permanent residents. Not a single member of the GOP leadership in the House or Senate has co-sponsored the legislation.

In the spring of 2010, John McCain, Mitch McConnell, John Boehner, Lindsey Graham, and many other establishment Republicans all suddenly began to question birthright citizenship. It was headline news for a week, but their failure to follow through suggests that this temporary concern about birthright citizenship may have been a cynical election ploy to sound tough before Republican primary voters, 77% of whom oppose birthright citizenship according to a Rasmussen poll.

Since then, birthright citizenship has largely disappeared from public discourse. The al-Awlaki controversy is a somber reminder of why Congress needs to bring this issue back to the forefront.

Tom Tancredo represented Colorado’s 6th Congressional District from 1999 until 2009. While in Congress, he chaired the bipartisan, 100-plus-member Immigration Reform Caucus. He currently serves as chairman of Team America PAC and The Rocky Mountain Foundation.