Emboldened by passage of the nation's toughest law against illegal immigration, the Arizona politician who sponsored the measure now wants to deny U.S. citizenship to children born in this country to undocumented parents.
Legal scholars laugh out loud at Republican state Sen. Russell Pearce's proposal and warn that it would be blatantly unconstitutional, since the 14th Amendment guarantees citizenship to anyone born in the U.S.
But Pearce brushes aside such concerns. And given the charged political atmosphere in Arizona, and public anger over what many regard as a failure by the federal government to secure the border, some politicians think the idea has a chance of passage.
"I think the time is right," said state Rep. John Kavanagh, a Republican from suburban Phoenix who is chairman of the powerful House Appropriations Committee. "Federal inaction is unacceptable, so the states have to start the process."
Earlier this year, the Legislature set off a storm of protests around the country when it passed a law that directs police to check the immigration status of anyone they suspect is in the country illegally. The law also makes it a state crime to be an illegal immigrant. The measure, which takes effect July 29 unless blocked in court, has inflamed the national debate over immigration and led to boycotts against the state.
An estimated 10.8 million illegal immigrants were living in the U.S. as of January 2009, according to the Homeland Security Department. The Pew Hispanic Center estimates that as of 2008, there were 3.8 million illegal immigrants in this country whose children are U.S. citizens.
Pearce, who has yet to draft the legislation, proposes that the state of Arizona no longer issue birth certificates unless at least one parent can prove legal status. He contends that the practice of granting citizenship to anyone born in the U.S. encourages illegal immigrants to come to this country to give birth and secure full rights for their children.
"We create the greatest inducement for breaking our laws," he said.
The 14th Amendment, adopted in 1868 in the aftermath of the Civil War, 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." But Pearce argues that the amendment was meant to protect black people.
"It's been hijacked and abused," he said. "There is no provision in the 14th Amendment for the declaration of citizenship to children born here to illegal aliens."
John McGinnis, a conservative law professor at Northwestern University, said Pearce's interpretation is "just completely wrong." The "plain meaning" of the amendment is clear, he said.
Senate candidate Rand Paul, a Kentucky Republican and darling of the tea party movement, made headlines last month after he told a Russian TV station that he favors denying citizenship to the children of illegal immigrants.
A similar bill was introduced at the federal level in 2009 by former Rep. Nathan Deal, a Georgia Republican, but it has gone nowhere.
The Federation for American Immigration Reform, based in Washington, said Pearce's idea would stop immigrants from traveling to the U.S. to give birth.
"Essentially we are talking about people who have absolutely no connection whatever with this country," spokesman Ira Mehlman said. "The whole idea of citizenship means that you have some connection other than mere happenstance that you were born on U.S. soil."
Citizenship as a birthright is rare elsewhere in the world. Many countries require at least one parent to be a citizen or legal resident.
Adopting such a practice in the U.S. would be not only unconstitutional but also impractical and expensive, said Michele Waslin, a policy analyst with the pro-immigrant Immigration Policy Center in Washington.
"Every single parent who has a child would have to go through this bureaucratic process of proving their own citizenship and therefore proving their child's citizenship," she said.
Araceli Viveros, 27, and her husband, Saul, 34, are illegal immigrants from the Mexican state of Guerrero. He has been in Phoenix for 20 years, she for 10, and their 2- and 9-year-old children are U.S. citizens.
"I am so proud my children were born here. They can learn English and keep studying," Viveros said in Spanish.
She said her husband has been working hard in Phoenix as a landscaper, and their children deserve to be citizens. The lawmaker's proposal "is very bad," she said. "It's changing the Constitution, and some children won't have the same rights as other children."