Born illegal

Luige del Puerto

AZ Capitol Times

Jun 4, 2010

Arizona’s new immigration law has yet to take effect, but Sen. Russell Pearce has already moved on to the next step in his quest to rid Arizona of illegal immigrants: deny birth certificates to children born in the U.S. to non-citizen parents.

But that’s not all. Pearce said he also wants to require students who are here illegally to pay tuition to attend public schools.

The proposals, which Pearce said he plans to introduce as legislation next year, are part of a coordinated strategy by Pearce and groups such as the Federation for American Immigration Reform (FAIR) to remove all incentives for illegal immigrants to live in the U.S.

“My issue is protecting the taxpayers. You can’t come here illegally and not be a legal resident and expect the taxpayers to pick up your tab,” Pearce said.

Critics, though, said revoking citizenship to people born in the U.S. would undermine the principles on which the nation was founded and redefine citizenship for far more people than Pearce may be envisioning. It may even create a set of people who lack citizenship of any country.

Requiring children to prove citizenship to attend public school, they said, would create a permanent lower class of uneducated residents who would be unable to sustain themselves or contribute to their communities.

“Why penalize the child?” asked Sen. Amanda Aguirre, a Democrat from Yuma. “Why do we want to create this type of society where a certain group of children — we want them to grow up without education?”

Within the last decade, Arizona has passed laws to deny public benefits to illegal immigrants, penalize business owners who hire undocumented workers and arrest people who cannot prove they are U.S. citizens.

But Pearce’s most recent ideas go far beyond establishing stricter enforcement of immigration laws and may signal the next steps for Pearce and immigration hawks across the nation: redefining citizenship and targeting the children of illegal immigrants.

“What is markedly different is that Russell Pearce, up to this point in time, has been bootstrapping federal law to justify his state laws,” immigration attorney Matthew White said. “This is a drastic approach that’s saying ‘I am now going to interpret the 14th Amendment. I am now the federal law and you are going to listen to me.’”

Both of Pearce’s proposals would challenge longstanding interpretations of the U.S. Constitution and past rulings by the U.S. Supreme Court.

Constitutional experts said Pearce’s proposals, if passed into law, would ultimately wind up in federal court because one would require overturning a longstanding definition of the 14th Amendment, and the other would rely on the Supreme Court reversing previous decisions that affirmed the rights of all children to receive a free public school education, regardless of citizenship status.

Paul Bender, who teaches constitutional law at Arizona State University, said the odds are stacked against Pearce because federal courts likely will refuse to upend such deep-rooted legal interpretations of the Constitution. What Pearce is trying to do, Bender said, may require a constitutional amendment.

“The fact that he doesn’t like what the Constitution provides is irrelevant,” Bender said. “He would be the first to tell you that liberals who don’t like the Constitution’s language need to get it amended if they want to change it, not rely on an ‘activist’ interpretation.”

What Pearce has on his side, however, is momentum from the successful passage of S1070, polls indicating majority support for the law and a frustration by the public at federal government inaction.

Pearce sees his proposals as the logical next step in a battle to reduce government spending on programs that benefit illegal immigrants and enforce laws that protect the sovereignty of the U.S.

“I no longer can stand by, you know, and watch the destruction of this country,” Pearce said. “I mean, have we not listed all the folks… who have been killed and maimed? Have we not seen the data about the cost to the taxpayers?”

Pearce’s allies said they welcome any efforts to end birth-right citizenship because the policy has been abused by people who enter the U.S. illegally.

“He’s not going after the children. You know, the absence of a benefit is not the same thing as a punishment,” FAIR spokesperson Ira Mehlman said. “I would say that he is systematically going after all the incentives to come to the United States illegally.”

Pearce’s ability to turn his ideas into state law would depend on many factors, including the results of the November election and the composition of next year’s Legislature. This year, Republicans control both chambers of the Arizona Legislature.

The dynamic of the next Legislature will depend on those in leadership positions. Pearce has indicated he will campaign to become the next Senate president if re-elected this fall, which would give him more clout to influence the legislative agenda and to make sure his measures advance.

Pearce’s ideas, if drafted as bills, would ensure Arizona’s continued place at the forefront of the immigration battle, prodding, cajoling and even threatening the federal government to do something about the complex problem of illegal immigration.

But while most Arizonans have supported state laws to crack down on illegal immigration in the absence of federal immigration reform, some lawmakers said Pearce’s new ideas go too far and may turn public opinion against him.

“At some point, the public is going to stop supporting this — they’re going to say enough is enough,” Democratic Sen. Paula Aboud said. “I think after a while Arizonans are going to get tired being the brunt of all the jokes, especially when legislation like this does not stop illegal immigration.”

14th Amendment of the U.S. Constitution

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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