Thursday, February 23, 2012

Fox 59 News Explores Instant Citizenship--A New Class Of Natural Born Citizens

Fox 59 News' Angela Ganote has a fascinating story, "Instant Citizenship," about an unusually large number of pregnant women visiting from the Middle East showing up at Central Indiana hospitals to give birth to their children here, taking advantage of our country's 14th Amendment citizenship birth. The debate over anchor babies is nothing new, but it has primarily focused on alien women crossing the U.S.'s southern border illegally in order to give birth to their children inside the U.S. so their children will become automatic citizens. Ganote's report is based on concerned doctors and health workers who see pregnant women traveling legally from the Middle East on tourist or student visas and presenting themselves without insurance ready to deliver their babies. 
Expectant mothers from all over the world, are coming to U.S. cities to have their babies, but Fox59 was surprised to hear concerns about it happening in Central Indiana. Two local hospital workers, inside two different major health networks, came forward, saying they're also seeing cases of instant citizenship.
Fox59 wanted to know how often it's happening and why the hospital workers who contacted us were so concerned. We found websites are all over the internet promoting maternity tourism. Expecting moms, promised posh stays in luxury hotels, spend tens of thousands of dollars, in cash, to give birth in America. The reason? Our country's 14th Amendment, which says all persons born in the United States are automatically citizens. "The first family I saw you think, 'oh it was an accident, they didn't think about it' and then you see a second and a third and a fourth. Then I started wondering, this is a pattern now," said one Central Indiana doctor.
The doctor, who wished to remain anonymous, said what many Indiana hospitals are seeing is different than the national, birth tourism stories. The maternity tourism industry, for the most part, has focused on Asian and Latin American mothers. Here in Indiana, the doctor said it's mainly Middle Eastern women, who are not U.S. citizens, coming in, ready to deliver.  
"It dawned on me at one point that these are American citizens now," said the doctor. "I had a colleague at the time that is from the Middle East, and she grew up there, and her comment to me was that a lot of these folks hate us and now they have a child that is an American citizen."
Area hospitals contacted by Fox 59 News were having no part of the story:
IU Health released a statement, which reads, in part: "We are not familiar with the circumstances described." St. Vincent Health issued their own comment: "We haven't seen any families traveling from the Middle East."
One of the confidential sources for Fox 59 News' report is a hospital worker of Middle Eastern origin, who offered this perspective on what is taking place:
She is from the Middle East herself and works directly with families of newborns and expectant moms.
"I see that quite often," said the worker, who also wishes to remain anonymous.
She said many women show up in the emergency room ready to deliver, telling staff they have no insurance and no means to pay. In other cases, these women are staying in Indiana longer than just a few weeks, here on education visas.
We asked the worker if she has ever had a conversation with the women about why they are here.
"The most popular answer I get is because they get social security benefits that Americans have, and they want to come back for education," the worker said.
As the report notes, hospitals legally cannot turn women ready to deliver their babies away at the door. If they don't have insurance or money to pay for the services, you and I wind up picking up the tab through higher insurance premiums and the government-sponsored Medicaid program and other publicly-funded health benefit programs.

This issue is already bubbling up in the terrorist cases. In 2001, Yaser Hamdi was captured by U.S. troops fighting American soldiers in Afghanistan and tried as an enemy combatant. Hamdi was actually born in Louisiana in 1980, but his parents, who were not U.S. citizens, returned with him to Saudi Arabia when he was still an infant. Hamdi's father argued in a case that made its way to the Supreme Court, Hamdi v. Rumsfeld, that his son's 5th and 14th Amendment rights as a U.S. citizen had been violated because of his detention and trial before a military tribunal instead of a civil court. The trial court dismissed Hamdi's habeas corpus petition, but the Supreme Court reversed, holding that Hamdi had a right as a U.S. citizen to contest his detention as an enemy combatant before a neutral decisionmaker. It's interesting that the Hamdi main opinion authored by Justice O'Connor refers to him as a U.S. citizen, while Justice Scalia's dissenting opinion refers to him as "a presumed American citizen." Justice Scalia seemed to be hinting that he is open to debating the question of whether children born of aliens within the U.S. are citizens automatically by virtue of 14th Amendment.

This issue also dovetails with the "natural born citizen" debate that has surfaced since Obama's election as president. Prior to the 2008 election, it had been presumed only children born in the country to U.S. citizen parents were considered natural born citizens. Mitt Romney's father, George, got hounded out of the 1968 presidential election because he was born to two U.S. citizen parents in Mexico and, therefore, was not a natural born citizen. He left the race rather than fight lawsuits threatened against his candidacy. Yet we've seen federal court after federal court refuse to even address the issue in Obama's case, and the Indiana Court of Appeals hold in Ankeny v. Daniels that the 14th Amendment changed the meaning of natural born citizen to include any person born within the U.S. and subject to the jurisdiction thereof despite a totally contrary view expressed by the U.S. Supreme Court in Minor v. Happersett. Obama, of course, is a dual citizen at birth. His father could have taken him to Kenya, where he was deemed a British citizen at birth because of his father's Kenyan citizenship. If the Supreme Court fails to address this issue, it will mean that even children born here of two foreign parents who return with their children to their native countries, can later return to the U.S. as adults and be eligible to serve as president of the United States. Somehow I don't think that's what John Jay had in mind when he wrote to George Washington asking for the natural born citizen requirement for presidents in the U.S. Constitution.


Paul said...

There appears to be some good reasons to modify the 14th Amendment. That being said, the 14th amendment seems pretty clear on this. As someone who believes in strict construction whenever possible, any modification of the 14th amendment should probably come through the Amendment process, not the Supreme Court, yes?

Gary R. Welsh said...

The 14th Amendment requires that you not only be born within the U.S. but also be "subject to the jurisdiction thereof." It's those words that have never been fully explored by the Supreme Court, which I assume is why Scalia used the words "presumed American citizen" to describe Hamdi. If aliens simply come here to give birth to their children and then return to their country of citizenship, it's hard to argue their child is someone over whom the U.S. has jurisdiction. The Wong Kim Ark decision didn't decide that question as some might suggest for illegal aliens or persons only temporarily visiting the U.S. The parents in the Wong Kim Ark case were both lawful permanent residents when their child was born in the U.S.

Gary R. Welsh said...

I should add that in many countries that child could not be considered a citizen of his parent's country unless the child gave up citizenship claim in another country.

Paul said...

Great post and thanks for the response.

I appreciate the idea, but I have no idea how a "subject to the jurisdiction thereof" limits here. If an "anchor baby" is born to a mother under the influence of drugs, is anyone going to argue that the U.S. has no jurisdiction to prevent the baby's going home with potentially unfit parents?

The only people I can think of that are not subject to U.S. laws when in the U.S. are foreign diplomats (diplomatic immunity). Is that a possible interpretation of the "subject to" phrase? It seems silly to me, but I really have no idea.

Do we have any information regarding the thoughts of the framers of the 14th Amendment regarding the "subject to the jurisdiction" phrase? That would be meaningful and potentially dispositive.

Gary R. Welsh said...

I think it's reasonable to argue "lawful" versus "unlawful presence" in terms of the language's reach. An alien consents to jurisdiction of the U.S. when he or she applies for lawful entry into the U.S. and agrees to enter subject to the laws governing their approved entry. You also should distinguish between those admitted lawfully for permanent resident purposes as opposed to those admitted temporarily. I thought they use to screen pregnant women applying for travel visas abroad and denied them tourist visas at one point to prevent this very thing from happening, unless they were traveling here to receive a specialized medical care needed for the delivery of their child due to complications that was not available in their country.