Commentary: Birthright Citizenship Puts America in Jeopardy

by Cindy Simpson

Today’s challenge, game show Jeopardy-style: “They have a particular status in common: Anwar al-Awlaki, Yaser Esam Hamdi, the twin daughters of El Chapo, Chinese children born to US surrogates, and children born in the US to illegal immigrants.”

After seeing the first two names, a contestant would probably be preparing to hit the button to answer something like “What is Islamic terrorism?” – until they finished reading the entire list. The last item would clinch it, and then the fastest button-pusher would confidently offer the politically-correct answer: “What is birthright citizenship?”

Justice Antonin Scalia, however, if he were a judge on the show, would have ruled that answer incorrect. And if he were alive today, he’d probably consider the challenge of dealing with the growing impact of the issue as crucial for our nation, for it puts our sovereignty and national security in very real jeopardy.

First, some background details for the sons and daughters in the question:

• Al-Awlaki was born in New Mexico in 1971 to Yemeni parents who returned with him to Yemen seven years later. In 1991 Awlaki came back to the US to study, became an imam in a mosque in California with ties to the 9/11 hijackers, eventually landed on the terrorism suspect list, and was killed in 2011 in an Obama-ordered drone strike.

• Hamdi was born in Louisiana in 1980 to Saudi parents, and the family moved back to Saudi Arabia when he was a child. In 2001 Hamdi was captured by US forces in Afghanistan and held as an enemy combatant.
• The twin daughters’ father, Joaquín Guzmán, aka “El Chapo,” famous Mexican drug lord and Sinaloa Cartel leader, married Emma Coronel (born in California to a Mexican father also involved in the cartel) who came back to California in 2011 to birth them and then immediately returned to Mexico.
• Chinese babies born to U.S. surrogates has become a popular trend for wealthy Chinese since the U.S. recently made it more difficult to travel here as “birth tourists.” As reported by the Heritage Foundation, they simply “send their reproductive material…to an IVF lab and implant it in a hired surrogate to produce a viable pregnancy.”

• Even before the massive illegal migrant border surge under the Biden administration, babies born to illegals comprised a sizeable portion of U.S. births. In 2018, the Center for Immigration Studies estimated around 300,000 such births per year, “larger than the total number of births in any state other than California and Texas.” These children, according not to a federal law but rather, as Ann Coulter pointed out, a footnote in Plyler v. Doe, are citizens entitled to welfare assistance and a public education. They’re also “anchor babies” (now considered a slur, even though in 2010 Newsweek surprisingly included Obama in its list of “anchor babies” titled “What’s So Scary About an ‘Anchor Baby’?). Anchor babies give parents protection against deportation, and in later years, an advantage in the path to naturalization for the extended family.

To summarize: all of these individuals were born on U.S. soil and had non-citizen parents at the time of their birth, with neither permanent U.S. domicile nor political allegiance to the U.S.

And so the correct answer is, Jeopardy-style: “What is ‘presumed’ U.S. citizenship?”

“Presumed” was the adjective used by Justice Scalia to describe Hamdi’s U.S. citizenship in the famous 2004 case of Hamdi v. Rumsfeld. Hamdi’s father, upon his son’s capture, had filed the petition arguing that his son was a U.S. citizen and therefore entitled to the constitutional right of due process.

Dr. John Eastman, noted constitutional law expert, argued in his editorial, “Wrong Question in Hamdi” that the question before the Court should have been: “Why is Hamdi being treated as a citizen at all?”

The Center for American Unity (CAU) and the Eagle Forum submitted amicus briefs in Hamdi that outlined the reasons they considered Hamdi’s claim to “birthright citizenship” (the practice of granting U.S. citizenship to every baby born on US soil, regardless of the citizenship, domicile, or legal status of its parents) more than presumptuous.

Tom Tancredo, one of the signers of the CAU brief, asked the same question of Awlaki: Was he “ever really an American citizen?”

As both briefs in Hamdi explained at length, those who insist birth on U.S. soil mandates automatic citizenship justify their view on this provision in the 14^th Amendment: “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.”

However, the CAU brief noted:

The Citizenship Clause of the Fourteenth Amendment was added during Senate debate [wherein] the authors discussed in great detail their purpose and intentions in adding the requirement that a person be born, not just in the United States, but “subject to the jurisdiction thereof.” Sen. Howard, sponsor and author of the Citizenship Clause, when questioned about the meaning of “jurisdiction,” responded that the phrase was intended to be read as meaning “not owing allegiance to anybody else.” Sen. Trumbull, Chairman of the Judiciary Committee, described persons who “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Chairman Trumbull noted that even “partial allegiance if you please, to some other government” is sufficient to disqualify a person under the jurisdiction requirement.

Although Justice Scalia did not elaborate on his usage of “presumed” in the opening of his dissenting opinion in Hamdi, the government’s Respondent brief and both amicus briefs referenced above used the same terminology. It could be argued that the entire case rested on the questionable premise of Hamdi’s U.S. citizenship.

Popular opinion, however, would contend that all of the “presumed” citizens in the question – Awlaki, Hamdi, Guzman’s twin daughters, the Chinese surrogate children, and babies born to illegals – because of their made-in-the-USA birth certificates, are “natural born citizens.” So, presumably, besides enjoying all the benefits of that status, they could also all run for President of the United States. (And if one disagrees with any of that, they’re labeled “racist” or “birther.”)

In 1875, citizenship was defined by the Supreme Court in the famous women’s suffrage case of Minor v Happersett as membership in a political community, to which the citizen owes allegiance, and from which the citizen is owed protection. The Court further asserted that new citizens may be born or created by naturalization, and “that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

But it was not until the 1960s, according to Dr. Eastman, that “popular perception” – not a constitutional mandate, sweeping court decision, or executive order – morphed into the “idea that mere birth on American soil alone ensured citizen status.” In the 1950s, children born in the U.S. to migrants in the Bracero work program were not considered U.S. citizens.

Now, citizenship is perceived to be purely derived by geographical location at the moment of birth, so well-timed travel planning is crucial. For the foreign relatives desiring admission to the U.S., an “anchor baby” birth in the right spot is cause for celebration.

Birth tourists plan ahead and arrive with legal travel visas. Some merely send their fertilized eggs to a surrogate. Other mothers illegally cross the southern border, hopefully before the due date. And none of the parents were likely eligible or went through the effort to make the U.S. their permanent domicile and to transfer their allegiance.

In his report on illegal immigration titled: “American Jackpot: The Remaking of America by Birthright Citizenship,” Mark Cromer used the subheading: “Run, Squat and Drop.” Although “well documented in classic Chicano literature” it is perhaps an insensitive description, but such is the reality.

“Run, squat and drop” is now joined by “fertilize, freeze, ship and implant.” Shipping one’s fertilized eggs half way across the world to implant them into the uterus of a U.S. resident so that the newborn will be guaranteed U.S. citizenship reveals the absurdity of the notion that mere location of one’s first breath is the sole determinant.

Adding to the issue, all of these babies born on U.S. soil – to foreign citizens here legally but temporarily, illegally, or anonymously to U.S surrogates – are also granted citizenship by their parent’s home countries, making them dual citizens .at birth.

The Oath of Naturalization for U.S. citizenship requires a formal rejection of other citizenships for foreign-born applicants. However, children born here as dual citizens are never formally required to make such a renouncement. The State Department rarely enforces its policies discouraging dual citizenship, and has adopted, as described by Frances Stead Sellers in her essay, “When Conflict Focuses on Citizenship,” a sort of  “don’t ask, don’t tell” policy.

The very idea of double allegiance is considered “civic bigamy” by scholars such as Dr. John Fonte, who notes the “principle that an American citizen should be loyal to the United States and to no other country or political power is a moral and constitutional issue of the highest order.”

In the book The 50% American, author Stanley Renshon estimated that more than 40 million Americans are dual citizens. That was in 2005. With the huge explosion of illegal immigration in recent years, that number will have skyrocketed.

Of course it cannot be implied that dual citizenship equates with terrorism, drug-smuggling or Communist aggression, but imagine the nightmare if America became involved in a global conflict while having a significant percentage of residents claiming not just heritage, but actual citizenship in the very countries with which we might be at war.

As Ms. Sellers wrote of dual citizenship, “War is all about taking sides. Unless of course, you can’t, because you belong on both sides.”

Our nation’s sovereignty relies on citizens that belong on its side, with sole allegiance to the political community of the United States of America, which in turn, provides its citizens the guaranteed protection of the rule of law.

Our enemies – not just countries but also terrorist groups and cartels – are well aware of the gaping hole in our fence, both physically and metaphorically. They see an easy way to not only invade, but to recruit soldiers and operatives who could use their “presumed citizenship” for access and protection.

Current U.S. law provides for the loss of citizenship for various reasons including “accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof[.]”  “Expatriate Terrorist Act” bills, first proposed by Sen. Joseph Leiberman in 2010 and others several times in later years including three times by Sen. Ted Cruz, recommended amendment of the law to include specific activities in support of designated terrorist organizations.

Awlaki and Hamdi were dual citizens by virtue of the birthright citizenship practice. So are El Chapo’s daughters, the Chinese surrogate babies and the illegals’ children. Stripping them of their U.S. citizenship would not render them stateless.

Years of an uncontrolled, massive border surge consisting of millions of mostly military-aged males not eligible for asylum – and the certain probability that terrorists, cartels, and foreign adversaries are among them – have created an untenable security risk.

As Steve Bannon noted in his recent interview on immigration with Tucker Carlson, none of this is a problem easily or quickly solved. “The issue is who has the courage to step forward and say, okay, we have to have a program to stop this immediately, and we also have to have another program to basically get these people out of the country, [or] we don’t have a sovereign country.”

In the slate of GOP 2024 presidential candidates, Donald Trump and Vivek Ramaswamy have courageously promised to end the birthright citizenship practice. Trump also dared mention deportations. And the media is howling. A new piece in The Atlantic described the immigration policy agenda of Trump and advisor Stephen Miller as “draconian zero-tolerance.” The New York Times warns it is “radical” and “extremist.” However no one from either party or the media has addressed the fact that legitimate asylum-seekers (those fleeing persecution) suffer further from the growing and now years-long backlog of hearing dates, full of millions of others clearly ineligible for asylum under present immigration law.

Eventually, doing nothing to end this insanity will mean that the whole system will become so overloaded and unmanageable that Democrats will undoubtedly propose mass amnesty as the only humanitarian and affordable solution. If Republicans instead attempt to do something now to end this unaffordable situation—which would include ending the magnet of birthright citizenship and tolerance of dual citizenship—they will surely be labeled, just as Michael Anton was in 2018 when he dared address the subject: “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”

But hurtful name-calling is nothing compared to the ongoing damage to the sovereignty, security, and finances of our nation. Time to mute the calming Jeopardy think music playing in the background of scenes created by uncontrolled immigration and to take action. Because avoiding the challenge places all of us in jeopardy.

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Cindy Simpson is a CPA, business owner, and citizen journalist living mostly in Louisville, Kentucky. Her articles have also appeared at American Thinker, The American Spectator, and RedState. Follow Cindy on Twitter @simpsonreport.
Photo “Anwar al-Awlaki” by Muhammad ud-Deen. CC BY-SA 3.0.