One of the major issues that I would hope a Trump Presidency and Republican Congress would tackle is a major immigration reform bill. I fully realize and support that effort to secure the border. Absent that we will right back in the same situation in another few years. The fact remains that the United States is the beacon on the hill that people in other countries long to come to and they are willing to overcome a great many hardships to get here.
With that in mind I have given some thought over the years on how I would approach immigration reform. The following is a multi-point approach that I think a lot of American could support.
- I would begin the process of issuing every American citizen a national ID card that would include some form of biometrics to deter counterfeiting. This would also solve the issue of voter ID. It would be the primary identification document each American has in his/her possession.
- I would then take a look at the number of people here illegally. You can call them undocumented all you want but they did cross the border illegally so it is correct to use that term. Anyone that thinks we are going to deport 11-12 million people is not thinking rationally. I will be the first to admit that there are many jobs in this nation that it is very difficult to get U.S citizens to do. Many of them are in the agriculture industry. Once we determine how many we need I would develop a process for those in the country and wanting to stay to apply for an ID card allowing them to be in the United States and work. Whatever that number is they will be the only aliens getting the card.
- Enforcement would be easier since now everyone that is eligible for employment, citizen or alien, would have the necessary ID. The penalties would be on employers and I would quit chasing people. It is too costly and very difficult. Employers would be advised that if they hire someone without the appropriate ID there will be a fine for the first offense. A second offense would mean the fine is tripled. Any third and subsequent offenses by that employer would result in a criminal charge against the top office in the company.
- To those that have been in the country for some period of time, determined by Congress in the bill, they will have the opportunity to apply for citizenship and a pathway would be developed. They would have to show that they have been law abiding and working. They will have to show they have been paying taxes when working. I realize that not every person here illegally wants to become an American citizen. For those that do they would have to meet the requirements laid out in an immigration bill.
- Now I would address one of the more thorny issues in any immigration debate. The 15th Amendment to the Constitution states “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the ” This is the basis for the principle of citizenship being granted if you are born in the United States. It was a direct response to southern states passing what were known as “Black Codes” which attempted to limit and remove many rights from freed slaves. Section 1 of the amendment, which contains the above language, overturned the Dred Scott decision by the Supreme Court which held that blacks were not citizens and could not become citizens.
I fully agree with intent of the 14th amendment. It was ensuring that freed slaves all enjoyed the equal protection of the law and had the same rights as any other American. I don’t think there were very many blacks sneaking into the United States to become slaves. All of them were here, according to the laws at that time, legally.
In the debate over the 14th Amendment a lot of issues were discussed including children born in the United States to foreign parents. According to many in the Senate and President Andrew Johnson this would make such children citizens of the United States. Looking at this debate in modern times we realize there was not a problem with illegal immigration in the 1860s. There were many scholars that disputed this interpretation of the amendment and have argued that children of parents not in the country legally were not citizens.
The principle was finally tested in the landmark case of United States v. Wong Kim Ark (1898). Wong Kim Ark was born in 1873 to parents from China that were in the United States legally. In 1894 Wong went to China to visit his parents who had returned to their native China. When he returned in 1895 he was denied entry based on the Chinese Exclusion Act which stated than any Chinese person that left the United States could not return without applying to do so. Wong sued claiming he was born here and the 14th Amendment granted him citizenship. He was held on a ship for five months while his case was being tried. (Can you imagine a case like this getting the Supreme Court that fast today). In a 6–2 decision issued on March 28, 1898, the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.”
I agree with the original intent of the 14th Amendment and the decision by the Court in the Wong case in 1898. In all instances they were addressing people that were in the country legally according to the law at that time. That is the major crux of the argument. We are granting one of the most prized possessions of our nation, citizenship, predicated on an illegal act. There have been many scholars that have debated this issue but the Supreme Court has not revisited it and the lower Courts have accepted it as settled law. I would argue that Congress has the ability to change the interpretation or at the least get a test case before the Court that would force them to revisit the issue with the full understanding of immigration, both legal and illegal, in modern times.
I would also suggest that any change to the law would be prospective in nature and it most salient point is that it would solve the problem in the future.
So to recap, my points are fairly simple. Issue the identification card as an enforcement tool, penalize employers instead of chasing people and reinterpret the U.S. v. Wong case on whether just being born here gives you citizenship.