Mike Kueber's Blog

May 13, 2010

Anchor babies and illegal immigration

Filed under: Issues,Politics — Mike Kueber @ 3:24 am

 “Anchor baby” is a term used to describe a child born in the U.S. with illegal-immigrant parents.  The term is based on the ability of the baby, who is automatically granted citizenship under current law, to eventually facilitate the legal immigration of family members through family reunification under the Immigration and Nationality Act of 1965.  Prior to 1965, America has immigration quotas for each country, and American minorities charged that these quotas favored northern Europeans.  Since 1965, the majority of immigration is based on family reunification/sponsorship. 

The problems associated with anchor babies are currently so large that even the mainstream media is reporting on it.  A recent CBS new story reported that an estimated 300,000 children of illegal immigrants are born in the U.S. each year.  At many border hospitals, more than half of the delivered babies have illegal-immigrant parents.  To put this in context, total legal immigration to the U.S. since 2000 is estimated at 1 million a year, of which 650,000 is family sponsored, 160,000 is employer sponsored, and 200,000 is from some other category.  It is obvious that the number of anchor babies is relatively large compared to the total number of immigrants, but that number has a multiplier effect through family sponsorship.   

Technically, U.S.-born babies cannot sponsor their families’ legal immigration until they are 21-years old, but immigration judges are much less likely to deport illegal immigrants if this forces an American baby to leave the country with them. Furthermore, many anchor babies are immediately eligible for welfare, such as the Aid for Families with Dependent Children Act.

There is nearly unanimous sentiment amongst American conservatives (and anyone else except open-border liberals) to revoke the concept of “anchor baby,” but little understanding about how to accomplish this.  Fortunately, an article titled Birthright Citizenship for Children of Illegal Aliens: an Irrational Public Policy by Lino Graglia explains this from a legal perspective better than anything I have previously read.  Graglia is a renowned Constitutional Law professor at my alma mater, The University of Texas Law School.  (Graglia uses the term “birthright citizenship” instead of “anchor baby,” probably because he has been criticized severely in the past for being insensitive to minorities.)  In the article, Graglia explains that birthright citizenship is based on the Citizenship Clause of the 14th 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.”

The 14th Amendment was ratified in 1868 following the Civil War and the Citizenship Clause was intended to require states to afford citizenship to the recently free slaves.  The phrase, “subject to the jurisdiction thereof,” was inserted to deny citizenship to babies born to foreign diplomats who were located in the United States.  There was not yet any consideration of illegal immigrants because the United States didn’t develop immigration limits until 1882.

Graglia goes on to explain that, although there is no Supreme Court decision expressly holding that the Citizenship Clause applies to U.S.-born children of illegal immigrants, there are two decisions that suggests this. 

    1. In United States v. Wong Kim Ark (1898), the Supreme Court held that children born to legal resident aliens in the U.S. automatically became U.S. citizens under the Citizenship Clause of the 14th Amendment. 
    2. In Plyler v. Doe (1982), the Supreme Court held that a Texas law that authorized the expulsion of illegal-immigrant children for public schools violated the Equal Protection Clause of the 14th Amendment.  In a footnote to the Plyler decision, Justice Brennan opined that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”   

Graglia is not shy is saying what he thinks about Justice Brennan:

  • “… perhaps the most liberal-activist Justice in the history of the Court and the source of most of the Court’s remarkable innovations in the last half of the twentieth century. The decision, like the grant of birthright citizenship to children of illegal aliens, makes a mockery of our immigration laws, but Justice Brennan never let law, fact, or logic stand in the way of a decision he wanted to reach.  He agreed with President Barack Obama that the function of the court was to decide challenging cases on the basis of empathy.”


Based on the holdings in Wong Kim Ark and Plyler, the Immigration and Naturalization Service assumes the children of illegal aliens have birthright citizenship as a constitutional right.  Graglia reports that this position “is, therefore, clearly subject to challenge and is increasingly being challenged.”  A constitutional amendment would be the most direct way to eliminate birthright citizenship, but that process is arduous.  Based on several persuasive commentators, Graglia concludes that the Supreme Court would likely defer to an Act of Congress amending the Immigration and Nationality Act.  We should add this as Provision #11 in the Contract from America.  


In reading the Plyler decision, I noted two highly interesting passages – one by Justice Brennan in the majority opinion and one by Chief Justice Burger in the dissenting opinion.  These passages criticize the way things were 38 years ago, and there has been almost no progress since then.

Justice Brennan’s statement of facts described Congress’s inability to solve the immigration problem:

  • “Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

Warren Burger’s dissent condemns the majority for legislating from the bench:

  • “The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders.  The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”


  1. […] HERE […]

    Pingback by The Dustin Inman Society Blog » Good insight/reflections on anchor babies — January 15, 2011 @ 10:55 am | Reply

  2. […] citizenship to children born in the U.S. even if their parents are here illegally.  I previously blogged about this subject and suggested that a constitutional amendment may not be necessary to effect […]

    Pingback by Potpourri « Mike Kueber's Blog — January 28, 2011 @ 4:28 pm | Reply

  3. […] so held, and therefore to correct this unintended drafting consequence, Congress will need to pass appropriate legislation or amend the […]

    Pingback by Comprehensive immigration reform, according to Kueber | Mike Kueber's Blog — November 30, 2014 @ 2:39 pm | Reply

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