Documente Academic
Documente Profesional
Documente Cultură
PUBLIC FORUM
Research
Position Paper
2011-2012
BIRTHRIGHT CITIZENSHIP SHOULD BE ABOLISHED IN THE UNITED STATES.
FEBRUARY
The Paradigm Research Public Forum Position Paper February 2012 by David Cram Helwich
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INDEX
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 AFFIRMATIVE POSITIONS BIRTHRIGHT CITIZENSHIP UNDESIRABLE: TOPSHELF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONGRESS CAN/SHOULD ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CONSENT PRINCIPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 DUAL CITIZENSHIP/ALLEGIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 IMMIGRATION LAW ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 IMMIGRATION MAGNET -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 IMMIGRATION MAGNET -- BIRTH TOURISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 IMMIGRATION MAGNET -- CHAIN MIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 IMMIGRATION MAGNET -- ECONOMIC EFFECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 IMMIGRATION MAGNET -- PARENTS/HARDSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 IMMIGRATION MAGNET -- SOCIAL SERVICES/BUDGET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 INTERNATIONAL COMPARISONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 MULTIWARRANT/GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 NUMBER OF BIRTHS/PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 POLITICAL POWER/VALUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 PUBLIC OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 RULE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 ANSWERS TO: "ADMINISTRATIVE BURDEN" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 "CHILD PUNISHMENT UNTENABLE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 "CHILD WELFARE/STATELESSNESS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 "FOURTEENTH AMENDMENT JUSTIFIES" -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 "FOURTEENTH AMENDMENT JUSTIFIES" -- JURISDICTION CLAUSE . . . . . . . . . . . . . . . . . . . . 48 "FOURTEENTH AMENDMENT JUSTIFIES" -- LEGISLATIVE RECORD . . . . . . . . . . . . . . . . . . . . 50 "SECOND CLASS STATUS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 "UNDOCUMENTED POPULATION/SOCIAL COHESION" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 NEGATIVE POSITIONS BIRTHRIGHT CITIZENSHIP DESIRABLE: TOPSHELF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ADMINISTRATIVE BURDEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AMERICAN PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHILD PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHILD WELFARE/STATELESSNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ECONOMIC COMPETITIVENESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EQUITY/SECOND CLASS STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GENDER CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MULTIWARRANT/GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RACE CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REFORM FOCUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOCIAL COHESION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . UNDOCUMENTED POPULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55 59 62 65 67 68 69 73 75 78 82 83 85
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NEGATIVE POSITIONS cont'd ANSWERS TO: "AMENDMENT UNNECESSARY" -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 "AMENDMENT UNNECESSARY" -- JURISDICTION CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 "AMENDMENT UNNECESSARY" -- LEGISLATIVE INTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 "CONSENT PRINCIPLE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 "DUAL CITIZENSHIP/ALLEGIANCE PROBLEMS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 "IMMIGRATION MAGNET" -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 "IMMIGRATION MAGNET" -- BIRTH TOURISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 "IMMIGRATION MAGNET" -- CHAIN MIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 "IMMIGRATION MAGNET" -- ECONOMIC EFFECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 "IMMIGRATION MAGNET" -- PARENTS/HARDSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 "IMMIGRATION MAGNET" -- SOCIAL SERVICES/BUDGET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 "INTERNATIONAL COMPARISONS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 "RULE OF LAW" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
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INTRODUCTION
Resolved: Birthright citizenship should be abolished in the United States. Virtually every interested commentator and analyst from across the political spectrum agree that our nation's immigration system is in need of serious reform. The large number of undocumented persons (up to 13 million), arcane immigration procedures, and gaps in border security are frequently voiced concerns. Where policy analysts and government officials differ is over how the nation should reform its immigration policies, and many of the most heated disputes center on how the government should respond to the realities of undocumented immigration. A recurring theme among "immigration restrictionists" has been proposals to decrease incentives for undocumented immigration, and favorite proposals continue to be changes to the procedures under which a person becomes eligible for citizenship. The February Public Forum debate topic addresses one such proposal, calling upon the pro team to defend an end to so-called "birthright citizenship," wherein all persons current born on American soil automatically are granted status as a U.S. citizen. This essay will discuss a few key aspects of the resolution and outline some of the strongest pro and con arguments. First, however, we will discuss the legal origins of birthright citizenship (BRC) and its implications for this month's resolution. The original text of the U.S. Constitution is notably lacking in a definition of what constitutes an American citizen, and legal scholarship exploring the evolution of citizenship in the first half of our country's history reveals an intricate and evolving political and legal landscape surrounding popular and legal notions of what it means to "be an American." Citizenship has generally been conferred through three channels: naturalization (where a person with citizenship in on country undergoes formally outlined process of acquiring citizenship in another country), by 'right of blood,' (where a person is born with the citizenship of their parents), and by 'right of soil' (where a person acquires the citizenship of the country in which they are born. Naturalization procedures are determined by federal statute, and are largely outside the scope of this month's controversy. A recent law review details important aspects of 'right of blood' and 'right of soil' citizenship: 1. Jus Sanguinis Jus Sanguinis: n. [Latin "right of blood"] The rule that a child's citizenship is determined by the parents' citizenship. . Most nations follow this rule. Cf. JUS SOLI. The principle of jus sanguinis applies to persons with a blood relationship to a citizen parent. Jus sanguinis, the older of the two rules used to determine citizenship at birth, comes to us through both Roman and early Germanic law. According to this rule, parentage determines citizenship. The United States follows birth citizenship by jus sanguinis to a limited extent, particularly where children are born to United States citizens abroad. 2. Jus Soli Jus Soli: n. [Latin "right of the soil"] The rule that a child's citizenship is determined by place of birth. . This is the U.S. rule, as affirmed by the 14th Amendment to the Constitution. Cf. JUS SANGUINIS. English common law followed the doctrine of jus soli, the principle that a person acquires citizenship in a nation by virtue of his birth in that nation or its territorial possessions. Thus, persons born within the King's dominion owed allegiance to and were subjects of the King of England, regardless of the citizenship of their parents. A feudal concept, jus soli developed from the idea that territorial sovereignty created a relationship between the individual and the land to which he was attached. Generally, the rule is universal, with two common exceptions: (1) children born to diplomats abroad, who are citizens of the nation whom their parents represent, and (2) children born to parents of an occupying force, who are considered subjects of the invading sovereign. Although it seemed that U.S. courts and legislatures adopted the jus soli doctrine, confusion persisted as to whether those native-born to alien parents were United States citizens. [William M. Stevens, "Jurisdiction, Allegiance, and Consent: Revisiting the Forgotten Prong of the Fourteenth Amendment's Birthright Citizenship Clause in Light of Terrorism, Unprecedented Modern Population Migrations, Globalization, and Conflict Cultures," TEXAS WESLEYAN LAW REVIEW v. 14, Spring 2008] Although some Americans acquire citizenship via Jus Sanguinis (notably the children of U.S. diplomats and service members posted abroad), the vast majority of Americans are citizens on the basis of Jus Soli. Although citizenship by birthplace was a legal norm during the first century of American history, the infamous Dred Scott (1857) decision, which held that black persons could be denied the privileges and immunitied of citizenship, created legal impetus for codifying this pathway to citizenship in the U.S. Constitution, since the Scott court ruled that slaves born in the United States could be excluded from citizenship. According to most legal scholars (and supported by Supreme Court jurisprudence), citizenship was guaranteed to all persons born in the United States by the Fourteenth Amendment.
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1.The Constitutional Basis of Birthright Citizenship. Birthright citizenship is based on the Fourteenth Amendment to the Constitution, which guarantees that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." The Supreme Court has interpreted this right to mean that "[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization." The Fourteenth Amendment is consistent with common law principles of jus soli, namely that one's nationality is determined by his or her place of birth. The alternative system, jus sanguinis, is employed by most European countries and grants citizenship by descent or blood, according to the citizenship of one's parents. [Sara Catherine Barnhart, "Second Class Delivery: The Elimination of Birthright Citizenship as a Repeal of 'The Pursuit of Happiness'," GEORGIA LAW REVIEW v. 42, Winter 2008, p.546] The Fourteenth Amendment formalized the Civil Rights Act of 1866, which granted citizenship to freed slaves and has been subsequently interpreted to grant citizenship to all persons born the U.S., including the children of immigrants. This interpretation of the amendment is subject to some controversy, as will be discussed below, but it still remains the law of the land to this day, having been upheld in two Supreme Court decisions, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). Not only does this resolution raise interesting questions about our understanding of citizenship and role of legal status in undocumented immigration, but it also provides a pretty clear and relatively balanced division of ground between the pro and con sides. "Birthright citizenship" is generally considered to reference citizenship granted to a person based upon the circumstances of their birth. In the United States, it refers to the Fourteenth Amendment provision (and common law) that grants citizenship to all persons born within the territory of the United States. "United States" refers to the "United States of America," although you should be prepared for squirrely pro teams that trot out definitions of "United States" that refer to Brazil, the Netherlands, etc. "To abolish" generally means "to do away with" or "to annul," and thus requires the pro team to defend the elimination of BRC. The con team is thus left with ground defending at least some form of birthright citizenship for some persons in the United States. However, the resolution is silent on two questions that will likely come up in most of your debates. First, the resolution does not specify an "agent of action" for the abolishment of birthright citizenship. There is a robust debate in the literature about whether BRC can (and should) be eliminated via a ruling by the Supreme Court of the United States, an act of Congress, or through an amendment to the United States Constitution. Although the resolution does not require the pro team to defend a particular agent, the con side could well leverage arguments about the undesirability of particular means of abolishing birthright citizenship. This means that you should prepare to either argue that the pro team does not have the burden of defending a particular mechanism of abolishing BRC, or to defend a method of eliminating the citizenship standard. Second, the resolution does specify a particular alternative to determining citizenship in place of birthright. Again, con teams can (and should) advance arguments that alternative means of determining citizenship (generally 'birth by blood') are inferior to birthright citizenship, meaning the pro side should be prepared to defend an alternative means of determining a person's citizenship. Arguments in support of the resolution generally fall into two categories. First, many legal commentators, particularly law professors Peter H. Schuck and Rogers M. Smith, argue that birthright citizenship is derived from outdated and dangerous feudal notions of citizenship, wherein a person is assumed to owe their allegiance to the sovereign (source of authority) that controls a particular territory. They claim that this understanding of citizenship was appropriate to a legal and political system that tied persons to the land on which they lived and worked and invested sovereignty in a lord who offered physical protection in exchange for their subject's allegiance. However, sovereignty is now held by both the Declaration of Independence and the U.S. Constitution as being invested in the people themselves, and most people view the Constitution and our nation's laws as a social contract governing the relationship between citizens as equals.
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From this perspective, the Constitution mediates the relationship between persons and a government whose actions are subservient to the interests of the sovereign people. Accordingly, we should view citizenship as an "opt in" system where people choose to pledge their allegiance to the United States of America, and not impose said allegiance solely on the basis of the circumstances of a person's birth. One could readily build a case around this argument, and if you are interest in doing so, we strongly suggest that you read Schuck and Smith's Citizenship Without Consent: Illegal Aliens in the American Policy (Yale University Press, 1985). Second, the pro side can argue that birthright citizenship creates serious problems in our nation's immigration system. Many critics of BRC argue that it serves as a powerful incentive for undocumented immigration, encouraging people to immigrate to the United States in the hopes that their children will automatically obtain the numerous benefits of American citizenship. Critics also contend that birthright citizenship fuels "chain migration," where children born in the United States are eventually able to obtain permanent resident status for their previously undocumented parents and family members via the U.S.'s family preference immigration system. These critics maintain that undocumented immigration poses a number of challenges, including depressing economic activity and draining the public coffers through the provision of social services to undocumented persons. The con side has a similar set of powerful arguments operating along the same two axes. First, defenders of birthright citizenship argue that the legal norm is vital to preserving formal equality, claiming that its abolishment would risk the creation of a permanent underclass of persons who live in the United States who are disadvantaged because they do not enjoy the same privileges and legal protections as full citizens. Commentators point the numerous problems faced by non-citizen immigrant populations in Western Europe, particularly Germany and France, as evidence that birthright citizenship both facilitates the blending of immigrants and their cultural understandings and practices the tapestry of American culture and helps preserve social cohesion by promoting a common and shared sense of American identity. There is some excellent evidence arguing that attempts to eliminate birthright citizenship are rooted in a dangerous xenophobia that not only carries disturbingly racist overtones, but also risks an unraveling of the nation's social fabric. Second, BRC advocates can point to a number of problems posed by the elimination of birthright citizenship, including serious legal, health, and economic consequences for the children of undocumented persons born in the United States and their families. There are also a number of useful defensive arguments against the pro side's "immigration magnet" claims. This seems to be a very good topic, and we hope that you enjoy debating it.
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BIRTHRIGHT CITIZENSHIP UNDESIRABLE: ANSWERS TO: "FOURTEENTH AMENDMENT JUSTIFIES" -- GENERAL cont'd
3. FOURTEENTH AMENDMENT DOES NOT REQUIRE BIRTHRIGHT CITIZENSHIP -- HAS BEEN WRONGLY INTERPRETED Hans von Spakovsky, "The Costs of Birthright Citizenship," THE FOUNDRY, Heritage Foundation, 9-9-10, http://blog.heritage.org/2010/09/09/the-costs-of-birthright-citizenship/, accessed 1-8-11. Birthright citizenship is not mandated by the 14th Amendment and the Supreme Court has never held that children born of individuals who are in the United States illegally are citizens -- only that the children of individuals who are born to legal permanent residents are citizens. Conferring citizenship on those whose parents are here illegally is a policy that has developed almost by default by the executive branch, with no deliberation by Congress through the normal legislative process used to decide important public policy issues. "Americans are justifiably upset with a policy that has become standard practice without their approval," CIS notes. Small wonder, since not only are our laws being taken advantage of by those who are seeking to evade our normal immigration rules, but the economic costs to the country and the average citizen-taxpayer are enormous.
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BIRTHRIGHT CITIZENSHIP UNDESIRABLE: ANSWERS TO: "FOURTEENTH AMENDMENT JUSTIFIES" -- JURISDICTION CLAUSE
1. FOURTEENTH AMENDMENT IS MISREAD, DOES NOT JUSTIFY BIRTHRIGHT CITIZENSHIP -JURISDICTION CLAUSE John C. Eastman, Professor, Law, Chapman University, "From Feudalism to Consent: Rethinking Birthright Citizenship," Legal Memorandum, Heritage Foundation, 3-30 -- 06, http://www.heritage.org/research/reports/2006/03/from-feudalism-to-consent-rethinking-birthright-citizenship, accessed 1-7-12. The Citizenship Clause of the Fourteenth Amendment provides 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." As manifest by the conjunctive "and," the clause mandates citizenship to those who meet both of the constitutional prerequisites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States. The widely held, though erroneous, view today is that any person entering the territory of the United States-even for a short visit; even illegally-is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore "subject to the jurisdiction" of the United States and entitled to full citizenship as a result, or so the common reasoning goes. Textually, such an interpretation is manifestly erroneous, for it renders the entire "subject to the jurisdiction" clause redundant. Anyone who is "born" in the United States is, under this interpretation, necessarily "subject to the jurisdiction" of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results. 2. CONGRESS CAN ALTER CITIZENSHIP STANDARDS Edward J. Erler, Professor, Political Science, CSU-San Bernadino, "Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny," IMPRIMIS v. 37 . 7, 7-08, www.hillsdale.edu/hctools/ImprimisTool/archives/2008_07_Imprimis.pdf, accessed 1-7-12. We have seen that the framers of the Fourteenth Amendment unanimously agreed that Indians were not "subject to the jurisdiction" of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.
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BIRTHRIGHT CITIZENSHIP UNDESIRABLE: ANSWERS TO: "FOURTEENTH AMENDMENT JUSTIFIES" -- JURISDICTION CLAUSE cont'd
3. FOURTEENTH AMENDMENT IS BEING WRONGLY INTERPRETED -- BIRTH SHOULD NOT AUTOMATICALLY ENTITLE A PERSON TO CITIZENSHIP John C. Eastman, Dean, Chapman University School of Law, "Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11," TEXAS REVIEW OF LAW & POLITICS v. 12, Fall 2007, p.170. Justice Scalia's significant, albeit brief and somewhat oblique, challenge to the received wisdom of the meaning of the Fourteenth Amendment's Citizenship Clause warrants our attention. As I argued in the brief I filed on behalf of The Claremont Institute Center for Constitutional Jurisprudence in the case, the received wisdom regarding the Citizenship Clause is incorrect, as a matter of text, historical practice, and political theory. As an original matter, mere birth on U.S. soil alone was insufficient to confer citizenship as a matter of constitutional right. Rather, birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate, a floor for citizenship below which Congress cannot go in the exercise of its Article I power over naturalization. While Congress remains free to offer citizenship to persons who have no constitutional entitlement to citizenship, it has not done so. Mere birth to foreign nationals who happen to be visiting the United States at the time, as with the case of Hamdi the Taliban, should not result in citizenship. Because court rulings to the contrary have rested on a flawed understanding of the Citizenship Clause, those rulings should be revisited or at least narrowly interpreted. Moreover, the statutory grant of citizenship conferred by Congress, which precisely tracks the language of the Fourteenth Amendment, should itself be re-interpreted in accord with the original understanding of the Citizenship Clause. In the wake of 9/11, now would be a good time to do so. 4. THEIR READING OF THE CITIZENSHIP CLAUSE MOOTS "SUBJECT TO THE JURISDICTION" -- IT DOES NOT GUARANTEE BIRTHRIGHT CITIZENSHIP John C. Eastman, Dean, Chapman University School of Law, "Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11," TEXAS REVIEW OF LAW & POLITICS v. 12, Fall 2007, p.171. However strong this interpretation is as a matter of contemporary common parlance, it simply does not comport with either the text or the history surrounding adoption of the Citizenship Clause, nor with the political theory underlying the Clause. Textually, such an interpretation would render the entire "subject to the jurisdiction" clause almost entirely redundant -- anyone who is "born" in the United States is, under this interpretation, necessarily "subject to the jurisdiction" of the United States -- and it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.
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BIRTHRIGHT CITIZENSHIP UNDESIRABLE: ANSWERS TO: "FOURTEENTH AMENDMENT JUSTIFIES" -- LEGISLATIVE RECORD
1. FOURTEENTH AMENDMENT DOES NOT ENSURE BIRTHRIGHT CITIZENSHIP -- LEGISLATIVE RECORD PROVES INVESTOR'S BUSINESS DAILY, "American Citizenship Is Not a Birthright," 8-10 -- 10, p.A10. A new IBD/TIPP Poll shows solid opposition to changing the Constitution to address the anchor baby issue (see chart). But does the amendment need amending or has it just been wrongly interpreted by those supporting illegal immigration? The 14th Amendment reads: "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" (italics added). Illegal aliens are still foreign nationals and are not subject to U.S. jurisdiction, except for purposes of deportation, and therefore their children born on American soil should not automatically be considered U.S. citizens. The purpose of the 14th Amendment was essentially to forever repeal the Dred Scott decision, grant full citizenship to all blacks and elevate citizenship from a state to a national determination. It was not to protect illegal aliens coming across the border. During debate on the 14th Amendment, Jacob Merritt Howard, a senator from Michigan who helped draft the amendment after the Civil War, stated quite clearly: "This will not, of course, include persons in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons." Rep. John Bingham of Ohio, regarded as the father of the 14th Amendment, said it meant "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your constitution itself a natural-born citizen." 2. LEGISLATIVE INTENT DID NOT INCLUDE AUTOMATIC CITIZENSHIP Howard Sutherland, attorney, "Citizen Hamdi: The Case Aainst Birthright Citizenship," AMERICAN CONSERVATIVE, 9-27-04, http://www.theamericanconservative.com/article/2004/sep/27/00021/, accessed 1-2-12. In the 1866 Senate ratification debate, the Citizenship Clause's proponent, Jacob Howard of Michigan, said it was simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. James Doolittle of Wisconsin queried Howard's language, but not because he favored birthright citizenship. Instead he wanted it clear that Indians were excluded because they owed allegiance to their tribes. The Citizenship Clause's drafters were careful to exclude Indians -- deep-rooted in this land -- from U.S. citizenship because they were not fully subject to the jurisdiction of the United States. It is inconceivable that they would countenance citizenship for Yaser Esam Hamdi just because he was born in Baton Rouge. Pennsylvania's Edgar Cowan discussed citizenship's limits. "If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he has a right to the protection of the laws, but he is not a citizen in the ordinary acceptation of the word." Lyman Trumbull of Illinois, chairman of the Judiciary Committee and a key drafter of the 14th Amendment, explained the jurisdiction requirement. "The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means." Maryland's Reverdy Johnson, the only Democrat in this Reconstruction-era debate, gave Trumbull bipartisan support. "Now all this amendment provides is, that all persons born in the United States and not subject to any foreign Power shall be considered as citizens of the United States." Johnson emphasized that the jurisdiction requirement meant the same as the phrase "not subject to any foreign Power" in the Civil Rights Act of 1866, passed by the same Congress that ratified the 14th Amendment. The import of the jurisdiction requirement, affirmed by its drafters' expressed intent, is that after dealing with the special case of freedmen the Citizenship Clause confers birthright citizenship only on citizens' children.
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BIRTHRIGHT CITIZENSHIP UNDESIRABLE: ANSWERS TO: "FOURTEENTH AMENDMENT JUSTIFIES" -- LEGISLATIVE RECORD cont'd
3. BIRTHRIGHT CITIZENSHIP IS CONTRARY TO CONGRESSIONAL INTENT -- 1866 CIVIL RIGHTS ACT PROVES John C. Eastman, Dean, Chapman University School of Law, "Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11," TEXAS REVIEW OF LAW & POLITICS v. 12, Fall 2007, p.172. Historically, the language of the 1866 Civil Rights Act -- from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act -- strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. The 1866 Act provides that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's parents, remained a citizen or subject of the parents' home country, was not entitled to claim the birthright citizenship provided in the 1866 Act. 4. APPLICATION TO CHILDREN OF UNDOCUMENTED IMMIGRANTS IS OUTSIDE THE ORIGINAL INTENT OF THE FOURTEENTH AMENDMENT Lino A. Graglia, Professor, Law, University of Texas, "Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy," TEXAS REVIEW OF LAW & POLITICS v. 14, Fall 2009, p.5-6. How, then, should the jurisdiction requirement of the Citizenship Clause be interpreted in regard to that question? Like any writing, or at least any law, it should be interpreted to mean what it was intended or understood to mean by those who adopted it -- the ratifiers of the Fourteenth Amendment. They could not have considered the question of granting birthright citizenship to children of illegal aliens because, for one thing, there were no illegal aliens in 1868, when the amendment was ratified, because there were no restrictions on immigration. It is hard to believe, moreover, that if they had considered it, they would have intended to provide that violators of United States immigration law be given the award of American citizenship for their children born in the United States. 5. FOURTEENTH AMENDMENT'S PURPOSE WAS TO GRANT CITIZENSHIP TO SLAVES, NOT THE CHILDREN OF UNDOCUMENTED IMMIGRANTS Lino A. Graglia, Professor, Law, University of Texas, "Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy," TEXAS REVIEW OF LAW & POLITICS v. 14, Fall 2009, p.6. The intended purpose of the Fourteenth Amendment and the Citizenship Clause is not in doubt. In 1856, in the infamous case of Dred Scott v. Sanford, the Supreme Court held that blacks, even free blacks, were not citizens of the United States and that a state could not make them citizens. It also held that Congress could not prohibit the extension of slavery to the territories, thereby invalidating the Missouri Compromise. Instead of settling the slavery question, as the Court foolishly thought it was doing, this decision precipitated the Civil War. The Thirteenth Amendment, adopted in 1865, prohibited slavery and involuntary servitude and granted Congress the power to enforce the prohibition by "appropriate legislation." Following emancipation, the Southern states adopted laws, known as "black codes," that limited the basic civil rights of their black residents in many respects. Congress responded by enacting our first civil rights legislation, the Civil Rights Act of 1866. The purpose of the Act was: first, to overrule Dred Scott by defining national and state citizenship so as to include blacks and, second, to guarantee those black citizens the same basic civil rights as white citizens.
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BIRTHRIGHT CITIZENSHIP DESIRABLE: ANSWERS TO: "AMENDMENT UNNECESSARY" -- LEGISLATIVE INTENT cont'd
3. CITIZENSHIP CLAUSE WAS INTENDED TO APPLY TO THE CHILDREN OF ALIENS -- LEGISLATIVE RECORD PROVES Sara Catherine Barnhart, "Second Class Delivery: The Elimination of Birthright Citizenship as a Repeal of 'The Pursuit of Happiness'," GEORGIA LAW REVIEW v. 42, Winter 2008, p.550-551. 3.Applicability of the Citizenship Clause to Aliens. Legislative history makes clear that the Citizenship Clause was meant to apply to children of aliens. The Fourteenth Amendment, in its original proposed version, did not contain the Citizenship Clause. Before its passage, Senator Jacob Howard of Michigan suggested that Congress include language in the amendment relating to citizenship rights. After a vigorous debate in the Senate, the Citizenship Clause was added to the Fourteenth Amendment. The Clause was highly contentious because many senators were concerned about extending birthright citizenship to children of aliens who were not Caucasian. In response to the Citizenship Clause, Senator Cowan asked whether it is "proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race [and whether] they [are] to be immigrated out of house and home by Chinese?" In response to this concern, Senator Conness from California stated, "I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights." Thus, without question, the Fourteenth Amendment was to apply to alien children. Senator Cowan, who voted against the amendment, continued: I am unwilling to give up the right of expelling a certain number of people who invade [a state's] borders; who owe to her no allegiance who pay no taxes; who never perform military service; If the mere fact of being born in the country confers that right, I think it will be mischievous. Senator Howard, in contrast, persuaded members of the Senate to support the Citizenship Clause proposal by explaining that the Amendment "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." This statement demonstrates that the Amendment merely confirms the common law of jus soli and does not restrict common law citizenship principles. Howard stated further: "[The amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers but will include every other class of persons."
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BIRTHRIGHT CITIZENSHIP DESIRABLE: ANSWERS TO: "IMMIGRATION MAGNET" -- CHAIN MIGRATION cont'd
4. SO-CALLED 'ANCHOR BABIES' ARE ONLY PROOF THAT WE CANNOT CONTROL OUR BORDERS INLAND VALLEY DAILY BULLETIN, "Stripping Birthright Won't Be Full Solution," 12-13-05, lexis. Also flawed: The argument that birthright citizenship undercuts America's ability to confer citizenship, a basic element of sovereignty. Actually, any problems stemming from birthright citizenship are a symptom of compromised sovereignty, not a primary cause. If America controls its borders, pregnant illegal immigrants won't have the opportunity to give birth within our nation. Conversely, a rash of babies born to illegal immigrants signifies that we've already failed to safeguard our borders and seen our sovereignty undermined. Of course, the argument that birthright citizenship robs us of our ability to set standards for citizenship is also faulty because so long as birthright citizenship is codified into law we are choosing our citizens, counting anyone born on our soil among them. Now consider a cost-benefit analysis. Ending birthright citizenship won't appreciably decrease illegal immigration or the number of illegal immigrants living in the United States. 5. 'ANCHOR BABIES' CANNOT PREVENT THE DEPORTATION OF THEIR PARENTS UNTIL THEY TURN 21 Marc Lacy, "Birthright Citizenship Looms as Next Immigration Battle," NEW YORK TIMES, 1-4-11, http://www.nytimes.com/2011/01/05/us/politics/05babies.html?_r=1&pagewanted=all, accessed 1-5-11. Despite being called "anchor babies," the children of illegal immigrants born in the United States cannot actually prevent deportation of their parents. It is not until they reach the age of 21 that the children are able to file paperwork to sponsor their parents for legal immigration status. The parents remain vulnerable until that point. Maria Ledezma knows as much. Just off a bus that deported her from Phoenix to the Mexico border town of Nogales, she was sobbing as she explained the series of events that led her to be separated from her three daughters, ages 4, 7 and 9, all American citizens. "I never imagined being here," said Ms. Ledezma, 25, who was brought to Phoenix from Mexico as a toddler. "I'll bet right now that my girls are asking, 'Where's Mom?' " 6. CHAIN MIGRATION CLAIMS ARE WRONG Shikha Dalmia, senior policy analyst, "The Bogus Case Against Birthright Citizenship," REASON, 3-15-11, http://reason.com/archives/2011/03/15/the-bogus-case-against-birthri, accessed 1-9-12. Nor is it plausible that their intention was to use their kids to gain citizenship for themselves. Kids have to wait until 21 to seek legal status for illegal parents and the parents must typically then wait outside the US for at least 10 years before they can obtain their green cards. About 4,000 unauthorized parents with kids who are citizens can avoid deportation every year. This, then, is the grand illicit citizenship racket that Will & co. want a constitutional amendment to crack!
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BIRTHRIGHT CITIZENSHIP DESIRABLE: ANSWERS TO: "IMMIGRATION MAGNET" -- ECONOMIC EFFECTS cont'd
3. UNDOCUMENTED IMMIGRANTS PLAY A VITAL ROLE IN THE ECONOMY, ARE REQUIRED TO PAY TAXES Francine J. Lipman, Associate Professor, Law, Chapman University, "The Taxation of Undocumented Immigrants: Separate, Unequal, and Without Representation," HARVARD LATINO LAW REVIEW v. 9, Spring 2006, p.4-5. Documented and undocumented immigrants have played a vital role in this country's economy and development since colonial times. Immigrants "voted in the United States and even held public office from the Colonial Era through the 1920s." "Neither the Constitution nor common law jurisprudence present a bar" to extending voting rights to noncitizens, and principles of democracy and equal protection actually support it. For many years, the right to vote was based upon property ownership rather than citizenship, reflecting the rationale that "property owners, including noncitizens, pay taxes and thus they too should have the right to vote." Undocumented immigrants, like all citizens and residents of the United States, are required to pay taxes. Despite the historic and strong American opposition to taxation without representation, undocumented immigrants (except in rare cases) have not enjoyed the right to vote on any local, state or federal tax or other matter for almost eighty years. Nevertheless, each year undocumented immigrants add billions of dollars in sales, excise, property, income, and payroll taxes, including Social Security, Medicare and unemployment taxes, to federal, state and local coffers. Hundreds of thousands of undocumented immigrants go out of their way to file annual federal and state income tax returns.
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BIRTHRIGHT CITIZENSHIP DESIRABLE: ANSWERS TO: "IMMIGRATION MAGNET" -- SOCIAL SERVICES/BUDGET cont'd
4. IMMIGRANTS DO NOT TAKE MORE FROM THE 'WELFARE STATE' THAN THEY CONTRIBUTE Katherine Pettit, J.D. Candidate, "Addressing the Call for the Elimination of Birthright Citizenship in the United States: Constitutional and Pragmatic Reasons to Keep Birthright Citizenship Intact," TULANE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW v. 15, Winter 2006, p.277-278. A final argument for why the United States is in a different situation now is the existence of a modern welfare state that did not exist when the Fourteenth Amendment was ratified. Representative Paul wrote in his "Straight Talk" column that he introduced an amendment to a 2005 immigration bill to end social security payments to non-U.S. citizens (despite their having worked and paid into social security) and to prohibit illegal aliens from receiving food stamps, student loans, or other federally provided assistance. Any student who has filed their Free Application for Federal Student Aid recently knows that one cannot apply for federal aid without having proper citizenship status. Likewise, any immigrant with a decent lawyer who has applied for cancellation from removal before an immigration judge knows that having benefited from food stamps (even those issued to a U.S.-born child) puts him or her at risk of being denied cancellation and removed. While it is hard to calculate the number of people who are illegally benefiting from government aid, presenting an image to constituents that the situation is drastically worse than they think (and probably worse than it really is) is unethical. The assumption that immigrants cross the border primarily to exploit the United States is unfounded, especially in light of the vast number of low-paying and service jobs that are filled by such people. After Hurricane Katrina hit, did the immigrants who rushed to New Orleans go there to take advantage of the great social welfare benefits being distributed there? Clearly not. Even if one concedes that immigrants do benefit from the U.S. welfare state, the counterargument, which is conceded by the strongest opponents of birthright citizenship, is that many immigrants pay taxes that support the welfare state. No conclusive evidence has been published that proves immigrants take more from the system than they contribute. 5. UNDOCUMENTED PERSONS PAY FAR MORE IN TAXES THAN THEY RECEIVE IN SOCIAL SERVICES -- CONSENSUS PROVES Francine J. Lipman, Associate Professor, Law, Chapman University, "The Taxation of Undocumented Immigrants: Separate, Unequal, and Without Representation," HARVARD LATINO LAW REVIEW v. 9, Spring 2006, p.1-4. Americans believe that undocumented immigrants are exploiting the United States economy. The widespread belief is that "illegal aliens" cost more in government services than they contribute to the economy. This belief is demonstrably false. "Every empirical study of illegals' economic impact demonstrates the opposite: undocumenteds actually contribute more to public coffers in taxes than they cost in social services." Moreover, undocumented immigrants contribute to the U.S. economy by investing and consuming goods and services; filling millions of "essential worker" positions resulting in subsidiary job creation, increased productivity and lower costs of goods and services; and making unrequited contributions to Social Security, Medicare and unemployment insurance programs. Eighty-five percent of eminent economists surveyed have concluded that undocumented immigrants have had a positive (seventy-four percent) or neutral (eleven percent) impact on the U.S. economy.
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BIRTHRIGHT CITIZENSHIP DESIRABLE: ANSWERS TO: "IMMIGRATION MAGNET" -- SOCIAL SERVICES/BUDGET cont'd
6. IMMIGRANTS PAY FAR MORE IN TAXES THAT THEY WILL RECEIVE IN GOVERNMENT SERVICES Meredith King Ledford, MPP, IMMIGRATIONS IN THE U.S. HEALTH CARE SYSTEM: FIVE MYTHS THAT MISINFORM THE AMERICAN PUBLIC, Center for American Progress, June 7, 2007, p.8. This myth is perhaps the most ardently asserted belief regarding undocumented immigrants and the U.S. health care system. The facts illustrate that undocumented workers contribute more to the revenue stream for U.S. social benefits than they use. In Texas, for example, nearly seven percent of the state's population was comprised of undocumented immigrants in 2005. The state's health care costs for undocumented immigrants that same year were a mere $58 million. Yet state revenues collected from undocumented immigrants exceeded what the state spent on social services provided to these immigrants such as health care and education by $424.7 million. Immigrant contributions to social services are similar across the country. The National Research Council concluded that immigrants will pay on average $80,000 per capita more in taxes than they will use in government services over their lifetimes. 7. UNDOCUMENTED PERSONS PAY MORE IN TAXES THAN THEY RECEIVE IN BENEFITS Marguerite Angelari, Professor, Law, Loyola University Chicago, "Access to Health Care for Elderly Immigrants, " ANNALS OF HEALTH LAW v. 17, Summer 2008, p.282. The United States economy benefits from the contributions of undocumented immigrants who pay in more to government programs than they receive in return. A 2002 study by the National Center for Policy Analysis found that undocumented workers "paid approximately 46% as much in taxes as American-born citizens, but they received only 38% as much from the government." Additional figures demonstrate that undocumented immigrants paid $ 50 billion in federal taxes from 1996 to 2003. In particular, the Social Security Administration ("SSA") and Medicare benefit from the taxes paid by undocumented workers; annually, undocumented immigrants pay seven billion dollars in Social Security taxes and 1.5 billion dollars in Medicare taxes. According to the 2008 Annual Report on Social Security, undocumented workers pay enough taxes to reduce the Social Security program's projected long-term deficit by 15%. The Social Security contributions of these six to seven million individuals are held in the SSA's Earnings Suspense File ("ESF"), a compilation of wages earned that "cannot be credited to a specific individual's earnings record because the name and the Social Security Number do not match up." As of 2003, the ESF contained $ 345 billion a portion of which derives from undocumented workers who do not have a social security number ("SSN").
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8. UNDOCUMENTED PERSONS PAY TAXES, PROVIDE SUPPORT TO LOCAL SCHOOL DISTRICTS -'DRAIN' ARGUMENTS ARE SIMPLY FALSE Neda Mahmoudzadeh, "Love Them, Love Them Not: The Reflection of Anti-Immigrant Attitudes in Undocumented Immigrant Health Care Law," THE SCHOLAR: ST. MARY'S LAW REVIEW ON MINORITY ISSUES v. 9, Spring 2007, p.485. Contrary to popular belief, undocumented immigrants actually contribute to the United States Treasury by paying Social Security and federal income taxes withheld from their paychecks (using false Social Security Numbers). Every year, the Social Security Administration receives substantial amounts of W-2 earning reports with false or incorrect Social Security Numbers, worth billions of dollars. Since 2000, unclaimed Social Security tax revenue and Medicaid taxes paid by undocumented immigrants respectively generated about $ 7 billion and $ 1.5 billion. A substantial portion of this revenue may belong to illegal immigrants who are unable to claim their Social Security funds. Undocumented immigrants also support local school districts by paying real estate taxes through home ownership or as renters. This is the case, even while it is estimated that only three percent of immigrants receive food stamps. Experts generally admit that illegal immigration has a mixed economic impact. While "employers, middle-class consumers, and some native workers" may benefit from it, other low-income workers, "whose jobs are taken or whose wages are lowered," suffer from it. Some economic theorists, however, argue that most of the wage and job losses are "sustained by previous immigrants because immigrants compete most directly with one another."
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