Experts: GOP Plan To Change Citizenship Rights Is ‘Clearly Unconstitutional’

Rep. Duncan Hunter Jr. (R-CA) and the U.S. Constitution (inset)
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Earlier this week, we told you about Rep. Duncan Hunter’s (R-CA) support for deporting natural born American citizens whose parents are illegal immigrants. That position is based on a Republican proposal to stop granting citizenship rights to such children.

According to two constitutional law experts, that’s “clearly unconstitutional.”

To explain Hunter’s comment, the congressman’s spokesperson pointed TPM to a bill, co-sponsored by more than 90 House Republicans, including Hunter, that would eliminate citizenship rights for children born in the U.S. whose parents are illegal immigrants.

The 14th Amendment states that “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 Birthright Citizenship Act of 2009 attempts to change all that — and seeks to require that citizenship rights are only granted to children born in the U.S. who have at least one parent in the United States legally.

Only one problem…

Erwin Chemerinsky, the founding dean of University of California, Irvine’s law school, tells TPM in an email that the proposal is “clearly unconstitutional.”

It is clearly unconstitutional under the first sentence of the Fourteenth Amendment which says that all persons born or naturalized in the U.S. are United States citizens.

Harvard Law Professor Richard Fallon concurs: “I can’t imagine the Supreme Court upholding such a law.”

Neither can Fallon’s Harvard colleague Gerry Neuman. He also described it as “clearly unconstitutional,” and said that he’s “confident the Supreme Court would hold it unconstitutional.”

Editor’s Note: This post has been added to and revised since it was first published.

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