Birthright Citizenship Looms as Next Immigration Battle

Of the 50 or so women bused to this border town on a recent morning to be deported back to Mexico, Inez Vasquez stood out. Eight months pregnant, she had tried to waddle north, even carrying scissors with her in case she gave birth in the desert and had to cut the umbilical cord.
“All I want is a better life,” she said after the Border Patrol discovered her hiding in the bushes on the Arizona side of the border with her husband, her young son and her very pronounced abdomen.

The next big immigration battle looming on the horizon centers on illegal immigrants’ offspring, who are granted automatic citizenship if born on American soil. Arguing for an end to the policy, long rooted in the Constitution’s 14th Amendment, immigration hard-liners describe a wave of migrants like Ms. Vasquez stepping across the border in the advanced stages of pregnancy to drop what are dismissively called “anchor babies.”

The reality at this stretch of the border is more complex, with hospitals reporting some immigrants arriving to give birth in America but many of them with valid visas who have crossed the border legally to take advantage of better medical care. Some are even attracted by an electronic billboard on the Mexican side that advertises the services of an American doctor and says bluntly: “Do you want to have your baby in the U.S.?”

As for women like Ms. Vasquez, who was preparing for a desert delivery, they are rare.

Still, Arizona — whose tough law granting the police the power to detain illegal immigrants is tied up in the courts — may again take the lead in what is essentially an attempt to redefine what it means to be an American. This time, though, Arizona lawmakers intend to join with legislators from several other states to force the issue before the Supreme Court.

This coalition of lawmakers will unveil its exact plans on Wednesday in Washington, but people involved in drafting the legislation say they have decided against the painstaking process of amending the Constitution and may instead unilaterally restrict the issuing of birth certificates to illegal immigrants’ children in their states. They know a flurry of lawsuits will follow and hope that the resulting legal conflict will be resolved in their favor.

“This is not a far-out, extremist position,” said John Kavanagh, one of the Arizona legislators who is leading an effort that has been called just that. “Only a handful of countries in the world grant citizenship based on the G.P.S. location of the birth.”

Most Constitutional scholars consider the states’ effort to restrict birth certificates patently unconstitutional. “This is political theater, not a serious effort to create a legal test,” said Gabriel J. Chin, a law professor at the University of Arizona whose grandfather immigrated to the United States from China at a time when ethnic Chinese were excluded from the country. “It strikes me as unwise, un-American and unconstitutional.”

The 14th Amendment, adopted in 1868, was a repudiation of the Supreme Court’s 1857 ruling, in Dred Scott v. Sandford, that people of African descent could never be American citizens. The amendment said citizenship applied to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

In 1898 the Supreme Court, in United States v. Wong Kim Ark, interpreted the citizenship provision as applying to a child born in the United States to a Chinese immigrant couple.

Still, some conservatives contend that the issue is unsettled. Kris Kobach, the incoming secretary of state in Kansas and a law professor at the University of