Sunday, February 21, 2016

Anchor Babies and the Presidency


Rubio was born May 28, 1971, in Miami, Florida. His parents are, Mario Rubio Reina and Oriales (née Garcia) Rubio. His parents were Cubans who immigrated to the United States in 1956, prior to the rise of Fidel Castro in January 1959. His mother made at least four trips back after Castro’s victory, including for a month in 1961. Neither of his parents was a U.S. citizen at the time of Rubio’s birth, but ultimately his parents applied for U.S. citizenship and were naturalized in 1975.

Critics have filed a suit in Florida questioning Marco Rubio’s eligibility, arguing that he’s ineligible because his parents were both not citizens at his time of birth in Miami, making him an "Anchor Baby".

At birth he had dual citizenship, but Cuba's law does not recognize dual citizenship, so he is only a U.S. citizen. But is he a "Natural Born Citizen"?

Legal eagles seem to have trouble defining anchor baby and Natural Born Citizen, even though the definitions and history are 100% clear on both.

An “anchor baby” is a child born in the U.S.A. to parents who are not legal U.S. Citizens at the time of the child’s birth. Under the 14th Amendment and subsequent immigration and naturalization laws, the U.S.A. grants that child “naturalized citizen” rights at birth and then that child becomes an “anchor” upon which the foreign parents can apply and usually receive naturalized citizenship as immigrant Americans.

While our immigration and naturalization laws currently offer general citizen rights to “anchor babies” like Rubio, born in the U.S. to foreign parents, the 14th Amendment has no bearing at all upon the definition of Natural Born Citizen or the Article II constitutional qualifications for the office of President and Vice President.

A citizen is either naturalized under the 14th or Natural Born to legal citizen parents, exempt from all immigration and naturalization laws and amendments. It is not possible to be both.

In simple terms, a Natural Born Citizen of the United States is a child who inherits maximum citizenship rights from their citizen parents at birth, including the rights reserved for only Natural Born Citizens, like holding the office of President or Vice President. Obviously, if someone received citizenship via 14th Amendment immigration and naturalization statutes, they cannot possibly be a Natural Born Citizen.

Keep in mind that “anchor babies” and the 14th Amendment did not exist at the passage of the Constitution. That the Founders had to exclude themselves from the Natural Born Citizen requirement in order to hold office, as none of our Founders were Natural Born Citizens even though most of them had been born on what would later become known as U.S. soil.

For me, “naturalized” citizens are not “Natural Born Citizens.” Our Founders reserved the highest offices in our land to only Natural Born Citizens, free from any foreign loyalties or entanglements.

Trump has raised the question: Does being born to illegal immigrant parents while geographically located in the U.S. automatically confer citizenship?

Supporters of birthright citizenship will often cite the 14th Amendment to the U.S. Constitution that guaranteed citizenship to freed slaves after the Civil War, which states, in part, “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.”

By its text, clearly, being born in the U.S. is not enough to confer citizenship. The person must also be “subject to the jurisdiction thereof.”

Opponents of birthright citizenship, such as constitutional scholar and radio talk show host Mark Levin and the Library of Law and Liberty’s Mark Pulliam, have noted that the reason for that is because the amendment was not intended to include Native Americans who did not owe allegiance to the U.S. And that, most importantly, the 14th Amendment does not automatically confer citizenship by default to those born in the U.S. if their parents are not citizens.

They quote the framer of the 14th Amendment, Sen. Jacob Howard (R-Mich.) who, at the time, explained the clause “is simply declaratory of what I regard as the law of the land already,” adding that, “This 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…”

And what was “the law of the land already”? Per Pulliam, the Civil Rights Act of 1866, which guaranteed citizenship to “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed…”

That, clearly, would exclude the children of citizens of foreign nations.

Later, in U.S. v. Wong Kim Ark (1898), the Supreme Court found that the child of legal immigrants was also guaranteed citizenship. One could argue whether this actually deviated from what was the “law of the land already” at the time of the adoption of the 14th Amendment, but clearly that case did not really address illegal immigrants, since that was not really a thing back then. So, let’s leave that aside.

Besides that, Congress is granted power under the Constitution’s Article 1, Section 8 to “establish a uniform rule of naturalization” and under the 14th Amendment’s Section 5 to enforce by legislation the provisions of that amendment.

So, Congress otherwise has the power to say who can be a part of the franchise. Later, Congress would confer citizenship to Native Americans, which required an act of Congress, since they were excluded by the text of the 14th Amendment.

Therefore, on the question of anchor babies, the primary source everyone should be looking at is the current statute enacted by Congress to answer the question.

Yet, 8 U.S. Code § 1401, “Nationals and citizens of United States at birth,” says, “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof,” repeating the exact same language of the 14th Amendment.

So, if the language of the 14th Amendment does not automatically confer citizenship to anchor babies, and Congress did not affirmatively grant citizenship in the statute to the children of illegal immigrants, which contains exactly the same language as the 14th Amendment, then anchor babies cannot be U.S. citizens.











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