Recently in New Jersey, current (and hopefully soon, former) Governor John Corzine’s blue ribbon commission on immigration made several suggestions. Among them is a provision that dependents of illegal immigrants be charged in-state tuition fees for state colleges. Although this type of proposal is not unique to New Jersey, Corzine has given his support to this provision. Their reasoning is that the children of illegal, undocumented immigrant parents should not be penalized for the acts of their parents.
This philosphy is a light into the workings of the liberal mind, if such is possible. New Jersey is in “dire fiscal straits” and regularly runs budget deficits. The Democrats have repeatedly raised taxes and fees while making token spending cuts while negotiating sweetheart deals with public employee unions. And every year, college tuitions at state colleges have increased. In order to keep the better performing Jersey graduating high school students in state, they created the STARS program that grants academically-based merit scholarships to students in order to avoid “brain drain” from the state. As part of Corzine’s budget balancing act, he has, however, changed the criteria making it more difficult for even legal New Jersey students to qualify. Now, he endorses a plan to grant in-state tuition fees to the children of illegal immigrants further straining a state college system facing budget cuts and increasing tuitions. In actuality, in-state tuition in and of itself is no educational bargain to start with compared with other states. In effect, his endorsement amounts to rewarding implicit illegal behavior.
What is also evident is that Corzine exemplifies the liberal position of expanding an entitlement program or a state benefit in the name of alleged fairness. He cannot, on the one hand, stand in Trenton and cry about a “fiscal crisis” facing the state’s finances then, on the other hand, extend a benefit to illegal immigrants. He, like most liberals, use the excuse that it is the rightful role of the federal government to enforce immigration laws and policies. True enough, but then why would the state create a panel on immigration? And why would that panel and the Governor endorse a program that essentially encourages illegal immigration? Instead of worrying about the alleged fairness of tuition scales for children of illegal immigrants, Corzine and all liberals should rightfully be concerned with fairness towards legal state and U.S. citizens.
And part of the problem stems from the notion of birthright citizenship- the idea that by simply being born on US soil, you are a US citizen. This idea grew out of the 14th amendment which was specifically passed to overturn the infamous Dred Scott decision after the Civil War. Then, in 1868, the major worry regarding the language of the amendment was whether Indians would automatically become citizens. A cursory examination of the legislative debate indicates that the answer was “NO” because Indians owed no “allegiance” to the US, but they did to their tribes. Hence, what can be more of a rebuttal to the concept of birthright citizsenship than denying Indians- clearly born on US soil- automatic citizenship. Consequently, Congress established laws and mechanisms that allowed Indians to become US citizens as they were so empowered in the 14th amendment. In essence, Indians were legislatively and constitutionally the equivalent of “illegal aliens” and their children, although clearly born on US soil, were not automatically considered US citizens. What could be a more forceful repudiation of birthright citizenship?
Yet, there is more. This repudiation can actually be traced to the Declaration of Independence. Birthright citizenship derives from British common law notions that if born on British soil or territory, you were automatically a subject of the British Crown. And it is that very justification for Britain’s strangehold on the rights of the American colonists that led to the Revolution. However, the Declaration clearly and concisely severed those ties and repudiated the very concepts espoused by the British Crown to keep the American colonists in line. It is why Thomas Jefferson asserted that unless you state allegiance to the British Crown, you were not a British citizen- and not subject to its “jurisdiction”- by virtue of where you are born.
Subsequent Supreme Court decisions, those on the left will argue, have upheld birthright citizenship and that Congress has essentially codified the concept. If true, what Congress codifies, Congress can uncodify, whether they do so under their enumerated powers to make immigration laws, or under their power to make laws under the 14th amendment. As for the actual decisions, one involved the citizenship status of a child born to legal immigrants to this country while another applied to the child of foreign diplomats. In either case, we are not arguing the status of children of parents who entered this country by following the rules, nor are we arguing about the children of diplomats. When this idea was approached in 2007, the Los Angeles Times erroneously stated that the issue was definitively decided by a unanimous Supreme Court in 1985 in the case of INS v. Rios-Pineda. In reality, the citizenship of child of the parents involved in that case, was not directly addressed and when it was, it was mentioned only in passing references. This case was more a procedural due process case that questioned whether the Attorney General can re-open deportation proceedings. Although unanimously decided 8-0 (Potter Stewart recused himself), substantive due process concerns were not at issue. Thus, the LA Times erroneously gives the impression that birthright citizenship is settled constitutional law. In fact, the Supreme Court has never directly tackled the issue.
When immigration reform is eventually and inevitably tackled by Obama and this Congress, it is imperative that Congress address birthright citizenship. The United States is perhaps one of the last country’s to accept this practice as even Great Britain eliminated it in 1968. It is most important to note that birthright citizenship and how the 14th amendment truly applies has NEVER been directly decided by the Supreme Court through constitutional challenge. That is, the Court has never explicitly given it the constitutional thumbs up or thumbs down. This issue needs to be legally resolved before any reform of immigration laws takes place. And here is one important reason why as stated in the same LA Times article. The Democratic leadership may use the ploy of adopting a rescision of birthright citizenship in the spirit of bipartisan compromise to gain support for “a path to citizenship,” or some form of amnesty. They would do this knowing full well that this concession may not withstand constitutional scrutiny and you can be damn well sure that some Latino group would mount a challenge. It is better to be on sound constitutional ground before taking this bait.
The costs of illegal immigration are staggering, especially in border states, and the costs incurred in education, health care, law enforcement, housing, the labor market and infrastructure are born by the states and their legal residents. Assuming, for example (and these may be conservative estimates), there are 7,000 qualified children of illegal immigrants in New Jersey and the difference between in-state and out-of-state tuition is $5,000, that translates into $35 million. Can the State of New Jersey really afford this $35 million in the “name of fairness?” More importantly, is it fair to the legal residents of New Jersey or those immigrants who followed the rules to absorb the cost of that $35 million? While they can argue that the children of illegal immigrants should not be punished for the sins of their parents, why should the legal residents of New Jersey or any state have to pay for those sins? If the State of New Jersey can truly afford $35 million, perhaps a better use for that money would be enforcement of immigration laws, not passing legislation that further encourages illegal immigration.