Saturday, May 01, 2010


(fm the BC thread "As American as Apple Pie")

Three reforms will be needed to solve the illegal immigration problem.
1. eliminate the anchor baby condition created by the XIVth
2. the apportionment of Congress must be based solely on the number of
     citizen voters,
3. establish that after 90 days visa violators are the same as illegal

The first two changes will require an Amendment to the Constitution. The first could in theory be achieved by an Act of Congress subject to judicial review or repeal. There would be no security in using such an approach that would be subject to cancellation by the courts or a future Congress.

To eliminate the anchor baby problem it is worth the trouble of changing the Constitution. There will be synergistic benefits to such a change. Much of the destruction that besets our society manifests itself in rising rates of out of wedlock births and unstable family structures. These problems are now manifest across almost all economic and social groups. An interlocking web of political alliances contribute to building support for government policies and political coalitions that are hostile to what are seen as the traditional mutually supportive structures of capitalism and the monogamous nuclear family. By refusing to recognize a child of an illegal alien as a citizen and decoupling the pressure of sexual politics from immigration politics the momentum would shift away from those seeking to radicalize American society. The decision to have a child, or engage in sexual activity that can produce a child, is not a purely personal choice since it can produce a future member of the body politic. We do not want to create a society where permission must first be obtained from authorities before engaging in sexual conduct. The current campus PC speech codes that seek to regulate communication between young men and women come perilously close to such a system. We can however regulate conduct by establishing different consequences for behavior engaged in between consenting members of the community and those engaged in with people not members of the community. Barack Obama's father was present in the United States on a non-immigrant visa when he married Stanley Dunham and fathered Barack Junior. Obama Senior would have been ineligible for an immigrant visa and naturalization because he was a polygamist.

Under the current law anchor babies can be used to qualify a rippling wave of relatives for immigration ahead of other applicants. Those who are crowded out by the family unification model, designed by Ted Kennedy, may have a greater desire and ability to contribute to American society.

I would support wording for an amendment that established that citizens are persons;
1. born to two parents both of whom are citizens,
2. born to parents one a citizen and one a lawful permanent resident
     or national,
3. individually naturalized by Congress, with each Senator and
     Representative restricted to submitting five candidates for
     naturalization each day that Congress is in session,
4. naturalized after at least 5 years as lawful permanent residents,
5. naturalized after completing a term of at least two years of
     honorable active service in the armed forces,
6. born outside of the United States to a citizen and a spouse eligible for
     naturalization through a marriage that has endured at least two years,
7. born to citizen as a result of an unlawful assault within the
     United States that was reported to authorities within 30 days.

Persons born in the United States "subject to the jurisdiction thereof" and ineligible for citizenship should be United States Nationals, like the people of American Samoa, and should not be able to vote in federal elections or serve on federal juries while residing within the US proper. Under my proposal such persons would be eligible for naturalization and their children could be born citizens, if one parent was a citizen.

The need to amend the Constitution to restrict the decennial reapportionment of Congress following the Census to considering the number of citizens eligible to vote who are resident within each state follows from a flaw in the construction of the XIVth Amendment. The relevant sections of that amendment are;
Section 1. 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. (...)

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The "subject to the jurisdiction thereof" clause in section 1 exempts children born to; foreign sovereigns, ambassadors, on foreign warships, and to camp followers of invading armies. While that may be seen to include the children of millions of illegal aliens it would be better to close the anchor baby hole with a clearer statement. The wording of section 2 was designed to punish States that were preventing former slaves from voting by threatening to reduce their representation in Congress. I do not believe that clause has ever been used. After the Civil War no one considered the possibility of illegal immigrants having an effect on the apportionment of Congress. There is no way to correct this problem without a new Amendment to the Constitution.

My third proposal follows from an anomaly in the current situation. Persons who evade inspection by CBP at a border Port of Entry are in criminal violation of the law and are subject to immediate deportation. All that is needed is to establish in an administrative hearing that the person in question is indeed someone who was not lawfully admitted and that they are not entitled to the full range of rights accorded to a citizen or person lawfully admitted. Persons who are temporarily paroled into the United States, for example for urgent medical treatment, are not considered as lawfully admitted and are also subject to expedited removal. Persons who do enter through a port but overstay their visa are in civil violation and are subject to detention and removal proceedings but they are not criminals. More to the point since they were lawfully admitted they enjoy the full range of civil rights of any United States person under the XIVth Amendment. This means that the presumption of innocence and need to exercise due process makes every effort to remove someone who violates the terms of their visa an extremely lengthy and expensive process. My proposal would strip a person who violates the terms of their visa of those protections after 90 days. There would be synergistic benefits between this policy and the effort to reduce the anchor baby and associated family unification problems.

There is some theoretical synergy between the hearings used to determine the status of illegal entrants who are subsequently subject to deportation without the full panoply of rights and expensive legal apparatus and the hearings that were proposed under the Bush administration to determine the status of persons detained as unlawful combatants and subsequently subject to indefinite detention without the benefit of the protections accorded to either defendants under domestic criminal law or to Prisoners of War. That may explain the eagerness of partisans of the Left and their supporters among the legal community to conflate the various categories of illegal aliens and accord full protections to all while also conflating the status of captured terrorists with traditional POWs and then granting them the privileges of defendants under American domestic law. Ideally not only would these categories of illegal or fraudulent entrants and unlawful combatants be denied the benefits of rights accorded to citizens and persons lawfully present and subject to the jurisdiction of the United States but similar status hearings would be used to determine the status of pirates who would then be subject to expedited punishment.

For my proposal to work it is essential that those supporting it embrace legal immigration. The United States should welcome all of those who love it, understand what makes it a beacon of liberty and creativity and generosity, and who seek to strengthen it.

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