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94–409 PDF 2015

BIRTHRIGHT CITIZENSHIP: IS IT THE RIGHT 

POLICY FOR AMERICA? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND BORDER SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

APRIL 29, 2015 

Serial No. 114–21 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

TREY GOWDY, South Carolina, Chairman 

RAU ́ L LABRADOR, Idaho, Vice-Chairman 

LAMAR S. SMITH, Texas 

STEVE KING, Iowa 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

ZOE LOFGREN, California 

LUIS V. GUTIERREZ, Illinois 

SHEILA JACKSON LEE, Texas 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

TOM JAWETZ, Minority Counsel 
(III) 

C O N T E N T S 

APRIL 29, 2015 

Page 

OPENING STATEMENTS 

The Honorable Trey Gowdy, a Representative in Congress from the State 

of South Carolina, and Chairman, Subcommittee on Immigration and Border Security .......................................................................................................... 1 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on Immigration and Border Security ... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration and 

Border Security .................................................................................................... 3 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 5 

WITNESSES 

John C. Eastman, Ph.D., Founding Director, The Claremont Institute’s Center 

for Constitutional Jurisprudence 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

Lino A. Graglia, A. W. Walker Centennial Chair in Law, University of Texas 

School of Law, testifying in his personal capacity 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Jon Feere, Legal Policy Analyst, Center for Immigration Studies 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 55 

J. Richard Cohen, President, Southern Poverty Law Center 

Oral Testimony ..................................................................................................... 73 

Prepared Statement ............................................................................................. 75 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security ................................................................. 84 

Additional Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Immigration and Border Security ............................................... 86 

Material submitted by the Honorable Luis V. Gutierrez, a Representative 

in Congress from the State of Illinois, and Member, Subcommittee on 

Immigration and Border Security ....................................................................... 94 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security ................................................................. 106 

Prepared Statement of the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on Immigration 

and Border Security ............................................................................................. 115 
Page

IV 

OFFICIAL HEARING RECORD 

UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security ................................................................. 5 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=103384 
(1) 

BIRTHRIGHT CITIZENSHIP: IS IT THE RIGHT 

POLICY FOR AMERICA? 

WEDNESDAY, APRIL 29, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:14 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trey Gowdy 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gowdy, Goodlatte, Labrador, Smith, 

King, Buck, Ratcliffe, Trott, Lofgren, Gutierrez, and Jackson Lee. 

Staff Present: (Majority) George Fishman, Chief Counsel; Andrea 

Loving, Deputy Chief Counsel; Graham Owens, Clerk; and (Minority) Tom Jawetz, Minority Counsel. 

Mr. GOWDY. The Subcommittee on Immigration and Border Security. This is a hearing on ‘‘Birthright Citizenship: Is It the Right 

Policy for America?’’ 

And I would say, at the outset, to my colleagues and to our witnesses, I have a meeting that is going to regrettably take me away. 

So, at some point, I am going to turn the gavel over, but I want 

to thank you—because I won’t be here at the end—and thank you 

for participating in this and thank my colleagues as well. 

The Subcommittee on Immigration and Border Security will 

come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

We welcome everyone. And the other administrative note is we 

are expecting votes in the not too distant future, so we will need 

to go vote, and then the Members that are able to do so will then 

come back. And we apologize in advance for any inconvenience, but 

there is no way to avoid that. 

At this point, I will recognize myself for an opening statement 

only to say that this is an interesting and important topic. 

And, with that, I will yield to the gentleman from Iowa, Mr. 

King. 

Mr. KING. Thank you, Mr. Chairman. 

I appreciate you yielding for the purposes of this opening statement. And I would like to raise these points at the beginning of 

this hearing, that this topic of birthright citizenship is something 

that I have worked on for some time. I want to give some credit 
2 

to the now Governor of Georgia, Nathan Deal, who used to be the 

one that was leading on this topic. And when he went back to 

Georgia, somebody had to pick up the ball and go with it. It is myself in the House primarily, with a lot of colleagues working together. And also Senator Vitter on the other side is the—is leading 

on a very similar bill that I am speaking to and not exactly that— 

as a component of the subject here that is before us. 

And the 14th Amendment of the Constitution says that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and the State where they reside. And that little troublesome clause in there, ‘‘subject to the jurisdiction thereof,’’ is the subject of our discussion here in this—in 

this hearing today in that and the policies that flow from it. 

And for those who argue that the physical birth of a baby on U.S. 

soil is an automatic grant of citizenship by policy, by Constitution, 

by statute, I believe, are uttering an ungrounded statement in that 

that clause, that troublesome clause of ‘‘subject to the jurisdiction 

thereof’’ defined it differently for clear reasons. 

And, that is, that if I look at the quotes from a number of U.S. 

Senators who debated this topic back in 1865 and 1866—the 14th 

Amendment was ratified finally in 1868—the lead Senator on this, 

one of the authors, Senator Jacob Howard said this: This will not, 

of course, include persons born in the United States who are foreigners or 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. 

And the purpose, of course, of the 14th Amendment was to guarantee that the babies born to the freed slaves would be citizens of 

the United States. 

The specificity in the clause was debated fairly thoroughly in the 

United States Congress, and it was there because there were Native Americans, called Indians under this—under the statute then 

and the amendments then, who would lose their membership in the 

tribe if they were granted automatic citizenship. So the clause was 

carefully targeted to make sure that African American babies born 

in America were citizens, just as those—just as those newly freed 

slaves were. They became citizens under the 13th Amendment of 

the Constitution. It. 

Did not contemplate that anyone who could sneak into the 

United States and have a baby would be conferred automatic citizenship on that baby. That is a practice that has evolved, not a law 

that has been passed, not a provision within the Constitution anywhere, including in the 14th Amendment. So we will get deeper 

into this definition of the ‘‘subject to the jurisdiction thereof.’’ 

This will be, if this bill is passed and becomes law—I don’t think 

there is any doubt it will be litigated. I look forward to that litigation. I think an objective court that would review the documents 

that build to this point has to conclude the same thing that I have. 

This is also something that flows from the Dred Scott decision 

that said that African Americans could never be citizens in the 

United States. That is the biggest reason that—well, it is one of the 

two big reasons for the Civil war. It is still debatable as to which 

is the biggest reason, I might point out. But it is the reason for the 

13th Amendment and the 14th Amendment to correct Dred Scott. 
3 

And so it corrected it, and then we started this practice, so—and 

to protect Native Americans. 

So the illegal parents, are they going to decide, or are we going 

to decide as representatives of the people of the United States of 

America? And I suggest that it is our job here as Congress to decide who will be citizens, not someone in a foreign country that can 

sneak into the United States and have a baby and then go home 

with a birth certificate. 

By the way, birthright—birth tourism has grown substantially. 

We had a hearing on this some years ago. The turnkey price for 

a Chinese pregnant woman to fly to the United States and check 

into a hotel, go through the maternity process, have a baby, get the 

birth certificate, take the baby back to China was $30,000 in that 

testimony several years ago, that price has gone up to $40,000 to 

$80,000. However, they still attest that they can’t pay for their 

medical bills. And so we, the taxpayers, fund that. 

Also, the numbers of birth tourism were then 700 and—340,000 

to 750,000. That is my recollection from that testimony. And today, 

I think, we are going to hear maybe 300,000 to 400,000 babies born 

automatically in America. 

There is a lot of data to flow out here. The objective thing for us 

to do is set the policy like almost every other industrialized country 

in the world has done. I encourage that we do that. 

I thank the Chairman. I yield back the balance of my time. 

Mr. GOWDY. Thank the gentleman from Iowa. 

The Chair would now recognize the gentlelady from California, 

Ms. Lofgren, for her opening statement. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Earlier this month, the House Committee on Science, Space, and 

Technology, where I also serve, held a hearing to cast doubt on 

global warming science. Never mind the overwhelming consensus 

in the scientific community that humans are contributing to climate change. Never mind the evidence that rapidly increasing 

greenhouse gas emissions are disrupting life all over the world. 

Rather than working to develop and support innovative methods of 

combatting climate change, the Science Committee held another 

hearing to debate whether established science is real. 

I can’t help but think that today’s hearing is a similarly fruitless 

effort. The question that we are asked to consider is whether birthright citizenship is the right policy for America. I think the answer 

is clearly yes and that, in fact, no other policy would be worthy of 

this country. 

The origins of birthright citizenship long predate the 14th 

Amendment. Supreme Court Justice Joseph Story said early on 

that, ‘‘Nothing is better settled at common law than the doctrine 

of jus soli or citizenship by place of birth.’’ 

The Supreme Court once diverged from this principle in the infamous Dred Scott decision when it denied birthright citizenship to 

the descendants of slaves. The violent institution of slavery itself 

was clearly an incredible injustice. In Dred Scott, the Supreme 

Court found a way to continue that injustice to reinforce the caste 

system at the heart of slavery, even with respect to children born 

in this country to freed slaves. 
4 

There is no question that the 14th Amendment was adopted and 

the citizenship clause was included as the very first sentence of 

that amendment to repudiate Dred Scott and to help us turn the 

corner of an ugly chapter in our Nation’s history. But the clause 

did not simply say, as it could have, that children born in this 

country to freed slaves are citizens of this country. Rather, the 

Framers of the 14th Amendment spoke in general terms, guaranteeing 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.’’ 

From the debate in Congress at the time, it is clear that they understood this language to have much broader reach. It is also clear 

that members were motivated to embed this language in the Constitution precisely because the constitutional right of citizenship 

would be protected from the caprice of Congress and the prejudices 

of the day. 

Thirty years after the 14th Amendment was ratified, the Supreme Court had occasion to consider whether a child born in this 

country to Chinese immigrants, who were by law prohibited from 

naturalizing, was entitled to birthright citizenship. The Supreme 

Court answered the question in the affirmative with sweeping language that is worth quoting. The court held, ‘‘The 14th Amendment 

affirms the ancient and fundamental rule of citizenship by birth 

within the territory in the allegiance and under the protection of 

the country, including all children here born of resident aliens, 

with the exceptions or qualifications as old as the rule itself of children of foreign sovereigns or their ministers, or born on foreign 

public ships, or of the enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of Indian tribes owing direct allegiance 

to their several tribes.’’ 

A minority view, among legal scholars, holds that Wong Kim Ark 

speaks only to children of legally present immigrants. The language in the case certainly does not suggest that additional exceptions or qualifications to the fundamental rule of birthright citizenship would apply to children of undocumented immigrants born in 

this country. 

But even if that were true, the Supreme Court in the 1982 case 

of Plyler v. Doe settled the question. In Plyler, the Court explained 

that the phrase ‘‘subject to the jurisdiction’’ in the citizenship 

clause applies as comprehensively as the phrase ‘‘within its jurisdiction’’ in the equal protection clause and that no plausible distinction with respect to 14th Amendment jurisdiction can be drawn 

between resident aliens whose entry into the United States was 

lawful and resident aliens whose entry was unlawful. 

So if there really isn’t a serious debate among scholars about 

what the clause means, is the purpose of this hearing really to consider whether the citizenship clause of the 14th Amendment adopted in the aftermath of the Civil War has outlived its usefulness? 

Can we expect the full Committee to soon take up the question of 

whether the equal protection clause guarantees too much equality? 

In preparing for this hearing, I thought about the Republican 

Party’s history as the party of Lincoln. On the GOP’s own Web site, 

there is a history of the party that proudly marks January 13, 
5 

1866, as the day that the 14th Amendment was passed by Congress, ‘‘with unanimous Republican support and against intense 

Democratic opposition.’’ 

And yet the question we are asked to consider today is whether 

the passage of the 14th Amendment and the citizenship clause almost 150 years ago was good policy for America. 

It is no wonder that when this issue flared up last in 2010 and 

congressional Republicans voiced their support for legislation and 

a constitutional amendment to restrict birthright citizenship, 

prominent Republicans like Mark McKinnon cautioned that, ‘‘The 

14th Amendment is a great legacy of the Republican Party; it is a 

shame and an embarrassment that the GOP now wants to amend 

it for starkly political reasons.’’ 

Republican leaders in the Senate narrowly avoided debate on 

this topic just last week when they prevented Senator Vitter from 

offering a birthright citizenship amendment to a bill on human 

trafficking. I cannot imagine the Republican leaders in the House 

are any more interested in bringing this issue to the floor. Actually, 

it has been 10 years since this Subcommittee last held a hearing 

on this topic, and I note that one of our witnesses, Professor Eastman, testified before us at that time. Hopefully, all of that means 

is this will be the last we hear of this issue for quite some time. 

And, with that, Mr. Chairman, I would like to ask unanimous 

consent to place in the record a testimony from the Community Relations Council of the Jewish Federation of Silicon Valley as well 

as statements from the Leadership Conference on Civil and Human 

Rights; the American Civil Liberties Union; First Focus Campaign 

for Children; the National Association of Latino Elected and Appointed Officials; the League of United Latin American Citizens; 

the Constitutional Accountability Center; Church World Service; 

Lutheran Immigration and Refugee Services; American Immigration Council; a sign-on letter from 14 national Jewish organizations; the Jewish Council for Public Affairs; Franciscan Action Network; Asian Americans Advancing Justice; American Immigration 

Lawyers Association; National Council of Asian-Pacific Americans; 

the National Latina Institute for Reproductive Health; the National 

Immigration Forum; We Belong Together; the Coalition for Humane Immigrant Rights of Los Angeles; and OCA, the Asian-Pacific 

American advocate. 

[Note: The submitted material is not printed in this hearing record but is on file with the 

Subcommittee, and may also be accessed at: http://docs.house.gov/Committee/Calendar/ 

ByEvent.aspx?EventID=103384.] 

Mr. GOWDY. Without objection. 

Thank you, gentlelady. 

The Chair will now recognize the gentleman from Virginia, the 

Chairman of the full Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I rarely have a conversation about general immigration policy in 

which the issue of birthright citizenship is not raised, yet it has 

been several years—nearly 10, I believe—since this Subcommittee 

has looked at the issue. So I thank the gentleman from South 

Carolina for holding this hearing. 
6 

The discussion is important as we move forward with any reforms to immigration law and policy. Birthright citizenship is the 

principle that the place of an individual’s birth automatically determines that individual’s citizenship. 

The U.S. policy on birthright citizenship stems from the 14th 

Amendment to the U.S. Constitution, of which the citizenship 

clause states that: All persons born or naturalized in the United 

States and subject to the jurisdiction thereof are citizens of the 

United States. 

Congress subsequently included that language in the statute. 

However, as we will hear today, the phrase ‘‘subject to the jurisdiction thereof’’ is central to the debate over whether the U.S. Constitution requires that the U.S. adhere to birthright citizenship. It 

is central to the question of whether the U.S.-born children of unlawful aliens should be considered citizens at birth. 

A close look at and discussion of the legislative history of the 

14th Amendment, the language of the Civil Rights Act of 1866, and 

relevant case law, like Elk v. Wilkins and United States v. Wong 

Kim Ark, are central to the determining the meaning of ‘‘subject to 

the jurisdiction thereof.’’ 

The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from 

settled. In any event, we must still determine if it is the right policy for America today. 

Very few countries with advanced economies have a policy of 

birthright citizenship. In fact, of the G20 countries, only the United 

States, Canada, and Mexico automatically grant citizenship based 

on the individual being born in the country, despite the citizenship 

or immigration status of the parents. That is not to say that just 

because other countries do not have a certain policy or law, the 

U.S. should not have that policy or law. But, as Members of Congress, we should have an open and honest discussion about the consequences of automatic birthright citizenship. 

Evidence suggests that automatic birthright citizenship 

incentivizes illegal immigration and abuse of U.S. immigration law 

and policy. And extremely troubling is the rise of the birth tourism 

phenomenon in which pregnant women from foreign countries 

briefly come to the U.S. Specifically to give birth here so that their 

children become U.S. citizens. The women and children then return 

to their home countries. This is becoming a multimillion dollar 

business in certain areas of the U.S. where maternity hotels advertise in foreign countries to house pregnant foreign nationals in the 

U.S. until they give birth. Even if you believe that birthright citizenship is the right policy for the United States—and I do not— 

but even if you do, such abuse of our generous policy is unacceptable. 

I look forward to the witness testimony and the discussion of 

whether and how to change the U.S. birthright citizenship policy. 

And I yield back. 

Thank you, Mr. Chairman. 

Mr. GOWDY. The Chair thanks the gentleman from Virginia. 

Without objection, other Members’ opening statements will be 

made part of the record. 

We have a distinguished panel before us. 
7 

And I will begin by swearing you in, and then I will introduce 

you en bloc and then recognize you individually. 

So, if you would, please stand and raise your right hand. Do you 

swear the testimony you are about to give is the truth, the whole 

truth, and nothing but the truth so help you God? 

May the record reflect all witnesses answered in the affirmative. 

We will start with Dr. John Eastman. He is the founding director 

of the Constitutional Jurisprudence Clinic, a public interest law 

firm affiliated with The Claremont Institute. He also serves as the 

Henry Salvatori Professor of Law and Community Service at Chapman University Fowler School of Law and also served as the 

school’s dean from 2007 to 2010. Prior to joining the Fowler School 

of Law faculty, he served as a law clerk for Justice Clarence Thomas at the United States Supreme Court and Judge Michael Luttig 

of the United States Court of Appeals in the Fourth Circuit. He 

earned his J.D. From the University of Chicago Law School, where 

he graduated with high honors. 

Next after him will be Professor Lino Graglia—and if I mispronounce anyone’s name, forgive me. Professor Graglia serves as 

the A.W. Walker Centennial Chair in Law at the University of 

Texas at Austin School of Law. He has been a visiting professor at 

the University of Virginia School of Law. He has written widely on 

constitutional law, especially on the judicial review, constitutional 

interpretation, race discrimination, and affirmative action, and also 

teaches and writes in the area of antitrust law. He received his 

J.D. And LL.B. From Columbia University School of Law, where he 

served as editor of the Law Review, and his B.S. In economics and 

political science from the City College of New York. 

After him will be Mr. Jon Feere. He currently serves as a legal 

policy analyst for the Center for Immigration Studies. His editorials have appeared in various publications, including U.S. News 

& World Report and the Washington Times. He received his B.A. 

In political science and communications from the University of 

California Davis and his J.D. From America Universities Washington College of Law. While in law school, he worked on this very 

Subcommittee, which was then known as the Subcommittee on Immigration, Border Security, and Claims. 

And, finally, Mr. Richard Cohen, currently serves as the president of Southern Poverty Law Center, where he has worked since 

1986 when he joined their staff as its legal director. In this position, Mr. Cohen has litigated a wide variety of important civil 

rights actions, defending the rights prisoners to be treated humanely and working for equal educational opportunities for all children. He is a graduate of Columbia University and received his 

J.D. From the University of Virginia School of Law. 

Welcome to each of you. The lights mean the same thing they 

mean traditionally in life. Green, go. Yellow, speed up. Red, go 

ahead and conclude that thought if you would. 

Dr. Eastman. 
8 

TESTIMONY OF JOHN C. EASTMAN, Ph.D., FOUNDING DIRECTOR, THE CLAREMONT INSTITUTE’S CENTER FOR CONSTITUTIONAL JURISPRUDENCE 

Mr. EASTMAN. Thank you, Mr. Chairman, and all the Members 

of the Committee. And I am particularly delighted to be here again. 

I worked closely with now Governor Deal when he was here. 

And I am so happy, Representative King, that you are taking up 

the charge. I think this is an extremely important issue. 

Congress has the power over naturalization. It is a plenary 

power, and that means you get to set the policy of how large or 

small, how understrained or restrained our restriction—our immigration into this country is going to be. The Founders did that by 

design because it is an inherently political question. 

The question for us is, whether one of the three great magnets 

to violating or ignoring the policy you set out can be addressed by 

statute or whether it requires a constitutional amendment. Those 

three magnets are, of course, an opportunity for a job, employment; 

access to our huge welfare benefits; and access to the Holy Grail 

of American citizenship. 

Both members that talked about the Constitution’s 14th Amendment rightly focused on the phrase ‘‘subject to the jurisdiction.’’ If 

that phrase is not to be entirely redundant, it has to mean something other than being born on U.S. soil, and that something is allegiance. And I think, if you look at the debates in Congress, if you 

look at the language of the 1866 Civil Rights Act, if you look at the 

first couple of Supreme Court cases to address this issue and the 

legal commentators, including the most prominent one at the time, 

Thomas Cooley, they all recognize that the ‘‘subject to the jurisdiction’’ clause meant allegiance-owing. 

There were two kinds of jurisdiction that was recognized in international law at the time. One they called mere partial or territorial. The other they called complete or whole jurisdiction. And it 

is the latter that the 14th Amendment refers to. 

The best way I can describe this is to imagine a foreign national, 

say, from Great Britain who comes to visit the United States as a 

tourist. When he is here, he is subject to our laws. He drives on 

the right side of the road rather than the left side of the road as 

he does at home. But that does not make him subject to our other 

jurisdiction. He doesn’t become a citizen. He doesn’t participate in 

our political process. He can’t be tried for treason if he takes up 

arms against us, although taking up arms would be subject him to 

other recourse. It is that lack of allegiance that makes him not subject to the jurisdiction in the full and complete sense that was envisioned by the 14th Amendment. 

And so, too, today there are people who are here lawfully and 

permanently who we have recognized as having some extent of allegiance to the United States. And their children will be deemed 

automatic citizens by virtue of this 14th Amendment. That was the 

holding and the full extent of the holding of the Wong Kim Ark 

case in 1898. 

Mr. Wong Kim Ark was a child of lawful permanent residents in 

the United States who had done everything we allowed them to do 

to demonstrate their allegiance to the United States. They were not 

here on tourist visas. They were not here as temporary sojourners, 
9 

to use the language of the day. They were here permanently, had 

taken up domicile as well as residence in the United States. 

And the language that Representative Lofgren quoted from that 

case, there was a particular phrase in it that she said, ‘‘in the allegiance’’ of the United States, the Court held. 

That meant it fit within the language of the 14th Amendment in 

a way that temporary visitors here—temporary visitors who may 

have come here legally and then overstayed their visa and were 

now here illegally and certainly temporary visitors who were never 

here legally in the first place, who never had been granted the consent of the United States to be here, who owed no allegiance to the 

United States and, in fact, continue to owe allegiance to their home 

country—their children, through them, owe allegiance to the home 

country, not to the United States, and are, therefore, not subject 

to the jurisdiction in that full sense. 

That is not only what the Constitution sets out and requires, but 

it is phenomenally good policy because, otherwise, the fundamental 

break we made with the old feudal system—that if you were born 

on the sovereign soil, you shall forever more be a subject of that 

sovereign—the fundamental break we made with that idea in the 

Declaration of Independence is we form a body politic by mutual 

consent. If we are to accept this newfound version of birthright citizenship, that no matter how you get here, how little you have obtained consent for being here, you can demand automatic citizenship, blows a hole through that notion of consent of the governed. 

And until we get back to the Declaration’s understanding of consent that is what creates citizens and what creates a people and 

a body politic, you will never be able to have any limitations on our 

immigration policy at all. 

I think the various bills that have been proposed over the years 

clarify that that constitutional language creates a floor, and how 

far above that floor we want to go is a matter of policy judgment 

for the Congress. 

I would suggest one thing: We have, for the last 40 or 50 years, 

adopted the notion by piecemeal and by osmosis almost that mere 

birth on U.S. soil is enough, and a lot of people have come to rely 

on that. So you might say: Let’s get this fixed and clarified going 

forward, but for those people over the last 50 years who have relied 

on it, let’s grant them citizenship as well retroactively, but let’s 

make clear that that grant of citizenship is pursuant to Congress’ 

naturalization powers, not because it is mandated by the 14th 

Amendment. 

And I think if you do that, you will put on—this body on very 

clear record of what your understanding of the constitutional floor 

is. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Eastman follows:] 
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Mr. GOWDY. Thank you, Dr. Eastman. 

Professor Graglia. 

TESTIMONY OF LINO A. GRAGLIA, A. W. WALKER CENTENNIAL 

CHAIR IN LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW, TESTIFYING IN HIS PERSONAL CAPACITY 

Mr. GRAGLIA. Thank you for inviting me. I am glad to have this 

opportunity to speak to this important question, though I am not 

sure I can add much to what Professor Eastman’s so very thorough 

presentation did. 

It is difficult to imagine a more irrational and self-defeating legal 

system than one that makes unauthorized entry into the country 

a criminal offense and simultaneously provides the greatest possible inducement to illegal entry, a grant of American citizenship. 

How could such a legal system have come to be and be permitted 

to continue? The answer, its defenders will tell you, is the Constitution. 

As Robert Jackson said in response to such arguments, the Constitution is not a suicide pact. The basis of the constitutional claim 

of birthright citizenship is, of course, the citizenship clause of the 

14th Amendment, which has been read many times. Not anyone 

born—not everyone born in the United States, therefore, is automatically a citizen, only those subject to the jurisdiction of the 

United States. So the question becomes, what does that jurisdictional statement mean? How should it be interpreted? 

Like any writing or at least any law, it should be interpreted to 

mean what it was intended to mean by those who adopted it, the 

ratifiers of the 14th Amendment. They could not have meant to 

grant birthright citizenship to children of illegal aliens because, for 

one thing, there were no illegal aliens in 1868 because there were 

no restrictions on immigration. 

The purpose of the 14th Amendment was to constitutionalize the 

great 1866 Civil Rights Act, our first civil rights statute, which begins with the statement from which the citizenship clause of the 

14th Amendment is derived. And that statement is: All persons 

born in the United States and not subject to any foreign power are 

hereby declared to be citizens of the United States. 

The phrase ‘‘not subject to any foreign power’’ would clearly exclude the children of resident aliens, legal as well as illegal. The 

14th Amendment citizenship clause substitutes the phrase ‘‘and 

subject to the jurisdiction thereof,’’ but there is no indication of any 

intent to change the original meaning. 

Senators Lyman Trumbull of Illinois and Howard of Ohio, principle authors of the citizenship clause in both the 1866 act and the 

14th Amendment, both stated that ‘‘subject to the jurisdiction of 

the United States’’ means not owing allegiance to anybody else, 

which, again, seems to clearly preclude birthright citizenship for 

the children of legal resident aliens and, a fortiori, more so of illegal aliens. It appears, therefore, that the Constitution far from requiring the grant of birthright citizenship to the children of illegal 

aliens is better understood as denying that grant. 

In the 1873 Slaughter-House case, the Supreme Court stated, in 

dicta, that: The phrase ‘‘subject to the jurisdiction thereof’’ was intended to exclude from birthright citizenship children of ministers, 
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consuls, and citizens or subjects of foreign states born within the 

United States. 

In 1884, in Elk v. Wilkins, the Court held that a child born to 

members of an Indian tribe did not have birthright citizenship because, although born in the United States, it was not ‘‘subject to 

the jurisdiction thereof.’’ 

No one, the Court said, can become a citizen of a Nation without 

its consent. And there cannot be a more total or forceful denial of 

consent to a person’s citizenship than to make that person’s presence in the Nation illegal. 

In 1898, however, the Court held in U.S. v. Wong Kim Ark that 

the citizenship clause granted birthright citizenship to children 

born in the United States of legal resident aliens. Two dissenting 

Judges—Justices argued correctly that, ‘‘The rule making the locality of birth the criterion of citizenship is based on ancient English 

common law that did not survive the American Revolution.’’ 

Every European country, including Great Britain now, has rejected that rule. 

Whatever the merits or lack of merit of Wong Kim Ark as to 

showing of legal residence, it does not settle the question of birthright citizenship as to children of illegal residents or children born 

of legally admitted aliens who have overstayed their visa. In 1982, 

however, in Plyler v. Doe, which was mentioned, a 5-to-4 decision, 

the Court in a footnote interpreted Wong Kim Ark as holding that, 

‘‘No plausible distinction can be made between legal and illegal 

resident aliens.’’ 

That statement cannot settle the matter, however, because it is 

not only a dictum—it had nothing to do with the case—but it was 

based on a clearly mistaken understanding of Wong Kim Ark. 

The apparent general assumption that the children of illegal 

aliens have birthright citizenship as a constitutional right is, therefore, clearly subject to challenge. A recent scholarly study of the 

issue concluded the Framers of the citizenship clause had no intention of establishing a universal rule of birthright citizenship and 

Congress has the authority to reject that rule. 

Judge Richard Posner—— 

Mr. GOWDY. Professor, I don’t want—I don’t want to interrupt 

you. If you—if you could maybe conclude. I hate to interrupt law 

professors. 

Mr. GRAGLIA. Judge Richard Posner, one of the most influential 

men—Justice of the country agreed Congress, he said, should 

rethink awarding citizenship to everyone in the United States, including children of legal illegal immigrants whose only chance is to 

come here. 

In my opinion, a law ending birthright citizenship for the children of illegal aliens should and likely would survive constitutional 

challenge. 

Thank you. 

[The prepared statement of Mr. Graglia follows:] 
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ATTACHMENT 
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Mr. GOWDY. Thank you. Thank you, Professor. 

Now Mr. Feere. 

TESTIMONY OF JON FEERE, LEGAL POLICY ANALYST, 

CENTER FOR IMMIGRATION STUDIES 

Mr. FEERE. Thank you, Chairman Gowdy, Ranking Member 

Lofgren, and the distinguished Members of the Subcommittee for 

allowing me to speak before you today on the very interesting issue 

of birthright citizenship. 

Every year, approximately 350,000 to 400,000 children are born 

to illegal immigrants in the United States. To put this in perspective, this means that 1 out of 10 births in the U.S. is to an illegal 

immigrant mother. The executive branch automatically recognizes 

these children as U.S. citizens, despite the foreign citizenship and 

illegal status of the parent. And, because the executive branch 

automatically recognizes them as U.S. citizens, they provide them 

Social Security numbers and U.S. passports. The same is true of 

children born to tourists and other aliens who are in the country 

in a legal status but in a temporary status. 

It is unlikely that Congress intended such a broad application of 

the 14th Amendment citizenship clause. And the Supreme Court 

has only held that children born to citizens or permanently domiciled immigrants must be considered U.S. citizens at birth. Some 

clarity from Congress would be helpful in resolving this ongoing debate. 

In recent decades, the issue has garnered increased attention for 

a number of reasons. First is the mass illegal immigration this 

country has experienced. The population of U.S.-born children with 

illegal alien parents has expanded rapidly in recent years from 2.7 

million in 2003 to 4.5 million by 2010. Under the immigration enforcement priorities of the Obama administration, illegal immigrants who give birth to U.S. citizens have become low priorities 

for deportation. 

Furthermore, the President’s DAPA program, Deferred Action for 

Parents of Americans and Lawful Permanent Residents program, a 

program currently held up in the courts, would provide benefits to 

illegal immigrants who give birth here and allow them to ‘‘stay in 

the U.S. without fear of deportation.’’ That is from the Administration. The broad interpretation of the citizenship clause forms the 

basis for these policies. 

Second is the issue of chain migration. A child born to illegal 

aliens in the United States can initiate a chain of immigration 

when he reaches the age of 18 and can sponsor an overseas spouse 

and unmarried children of his own. When he turns 21, he can also 

sponsor his parents and any brothers or sisters. Approximately 

two-thirds of our annual immigration flow is family-based. And 

that’s part of the reason, not the entire reason, but part of it. And 

this number continues to rise every year because of the every expanding migration chains that operate independently of any economic downturn or labor need. 

Third, the relatively modern phenomenon of affordable international travel and tourism has increased the opportunity for noncitizens to give birth here, raising questions about the appropriate 

scope of the citizenship clause. According to the Department of 
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Homeland Security, in 2013, there were 173 million nonimmigrant 

admissions to the United States. This includes people entering for 

tourism, business travel, and other reasons, but it also includes 

those who are engaging in birth tourism, which is a growing phenomenon that has arisen in direct response to our government’s 

broad application of the citizenship clause. 

Birth tourism is the practice of people around the world traveling 

to the United States to give birth for the specific purpose of adding 

a U.S. passport holder to the family while misrepresenting the true 

intention of their visit to the United States. An entire birth tourism 

industry has been created, and the phenomenon has grown largely 

without any debate in Congress or the consent of the American 

people. Birth tourism is becoming much more common with every 

passing year, and I do think at some point Congress will have to 

address it. 

Fourth is the sense among many Americans that the United 

States is falling behind the global trend on birthright citizenship, 

as many countries which once had such policies have ended them 

in recent years. The United States and Canada are the only two 

advanced economies as rated by the IMF to grant automatic citizenship to children of illegal aliens. For these reasons and others, 

there has been a bipartisan effort to end birthright citizenship legislatively here, even in Canada as well. 

Multiple legislative efforts to clarify the appropriate scope of the 

citizenship clause have been proposed by both Republican and 

Democrat politicians as there remains much debate about who 

should be considered subject to the jurisdiction of the United 

States. In 1993, Senator Harry Reid, Democrat from Nevada, introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens. And similar bills 

have entered—been introduced by other legislators in nearly every 

Congress since, I believe. 

Some clarification from Congress on this issue would certainly be 

welcomed and perfectly appropriate. I would be happy to take any 

questions on these and other issues. Thank you. 

[The prepared statement of Mr. Feere follows:] 
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Mr. GOWDY. Thank you, Mr. Feere. 

They have called votes. But, Mr. Cohen, I am going to let you 

give your opening, and then we will recess for votes after that. 

Mr. Cohen. 

TESTIMONY OF J. RICHARD COHEN, PRESIDENT, 

SOUTHERN POVERTY LAW CENTER 

Mr. COHEN. Thank you, sir. 

It’s an honor, a great honor to be here today. Birthright citizenship is a core value enshrined in the first sentence of our—of the 

14th Amendment. With the exception of children of diplomats, 

members of Indian tribes, and hostile enemy occupiers, the birthright citizenship clause provides that all children born in this country are citizens entitled to the full blessings of our democracy. The 

immigration status of their parents is irrelevant. 

The view of birthright citizenship that I’ve just expressed is compelled by the plain language of the 14th Amendment, by its legislative history, and by Supreme Court precedent. Those offering a contrary view must bear a heavy burden of persuasion. 

The birthright citizenship clause, as a number of you have noted, 

provides that all persons born or naturalized into the United States 

and subject to the jurisdiction thereof are citizens of the United 

States and the State wherein they reside. On its face, the clause 

makes no distinction on the basis of one’s parents’ immigration status. From a commonsensical point of view, children born in this 

country are subject to the jurisdiction of the state: They must obey 

our laws. They must pay taxes if they earn income. They can be 

jailed or removed from their homes and placed in foster homes. 

As Professor Graglia noted, Plyler adopted this commonsensical 

view, although he apparently believes it’s wrong. 

In the seminal case of Wong Kim Ark, the Supreme Court made 

it clear that the blessings of birthright citizenship do not turn on 

the immigration status of one’s parents. As this Committee knows, 

the case concerned the status of someone born in this country to 

Chinese parents. Under the law at the time, his parents were ineligible for citizenship. The court pointedly noted that the parents 

were subjects of the Emperor of China. Nevertheless, the court 

ruled that Wong Kim was subject to the jurisdiction of this country 

under the 14th Amendment and, therefore, a citizen by virtue of 

having been born here. 

The legislative history of the 14th Amendment powerfully supports this understanding. During the debate of the proposed 

amendment in the Senate, Senator Cowan focused on gypsies in an 

effort to persuade his colleagues not to support birthright citizenship. He described gypsies as pariahs. He said that, and this is a 

quote, ‘‘They were trespassers wherever they go.’’ Trespassers. That 

is about as close as it gets in 1866 to so-called illegal immigrants. 

No one in the Senate took issue with Senator Cowan’s stereotypic 

description of gypsies. No one claimed that they were not trespassers. But what other Senators did make clear was that the 

birthright citizenship clause would confer citizenship on the children of gypsies. 

The Supreme Court, in Wong Kim Ark, took note of this fact. The 

Wong Kim Court emphasized that the 14th Amendment granted— 
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that the 14th Amendment’s grant of birthright citizenship is very 

broad. The Court also emphasized that, while Congress may have 

plenary authority over immigration, including the authority to legislate against those who were unpopular, it is powerless to limit 

birthright citizenship by ordinary legislation. The only way that 

that can be done is by constitutional amendment. That is the 

course that those who oppose birthright citizenship must pursue. 

Let me use one of our cases to illustrate why I hope those who 

want to change the law are not going to be successful. Recently, we 

had the privilege of representing a young woman named Wendy 

Ruiz. She was born in Florida and lived there all her life. Yet the 

State was denying her the possibility of in-state tuition because she 

couldn’t prove that her parents were here legally. We sued and won 

the case. And the court, citing Plyler, emphasized that we shouldn’t 

visit this supposed sins of the parents on their children. 

Last fall, after attending college, Wendy spoke at the Dexter Avenue Baptist Church. That’s the church from which Dr. King and 

his allies launched the modern civil rights movement. She told a 

deeply, deeply American story. She talked about the struggles of 

her farm worker parents. She talked about the determination to 

get—her determination to get an education. She talked about her 

dream of becoming a lawyer so she could give back to the community. One day, I hope that she gets to testify before this Committee. 

It is simply inconceivable to me that our country would deny the 

blessings of citizenship to the Wendy Ruizes of the world. Our immigration system may be broken, but we should resist the calls to 

roll back the constitutional guarantee of birthright citizenship in 

an effort to fix it. The clause expresses a fundamental principle of 

our democracy that there are no second-class citizens, that all persons born in this country, regardless of the status of their parents, 

are equal citizens under the law. 

I appreciate it, Mr. Chairman. I look forward to your questions. 

[The prepared statement of Mr. Cohen follows:] 
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Mr. GOWDY. Thank you, Mr. Cohen. 

We will recess or adjourn briefly to go vote, and then we will all 

come back. And we thank you for your patience while we are gone. 

[Recess.] 

Mr. GOWDY. The Committee will come to order. I thank our witnesses for your patience as we went to vote. And I will ask my 

questions, and then I will turn it over to Congressman King, and 

then he will recognize Congresswoman Lofgren. 

But I want to start by saying to all of them, but in particular 

I have the openings of Mr. Cohen and Mr. Eastman in mind, and 

I was talking to a colleague on the way to votes about what an interesting, perhaps even fascinating, legal argument it is and the 

way that you both approach the law. There was no demagoguery, 

and there were no personal attacks. And nobody suggested that 

anybody loved the country more or less than the other. And I want 

to compliment all four of you for your openings, but Dr. Eastman 

and Mr. Cohen, in particular, those of us who like the law and are 

fascinated by the law, it is—it is a legal inquiry to me. 

So, against that backdrop, Mr. Cohen, as I read the 14th Amendment and the conjunctive ‘‘and,’’ all persons born and subject to the 

jurisdiction, do you assign meaning to the phrase ‘‘subject to the jurisdiction,’’ and if so, what meaning do you assign to it? 

Mr. COHEN. Of course, I do, and I would assign it the meaning 

that the Court gave in the Wong Kim Ark and in Plyler. It has predominantly a geographic meaning. And the Court in Plyler was 

unanimous in that regard. There is another aspect to it, and that 

is that we know that ‘‘subject to the jurisdiction’’ excluded persons 

who were the children of foreign diplomats, it excluded members of 

Indian tribes that had been recognized, and it also excluded what 

were called hostile enemy combatants or, you know, alien enemies 

in hostile occupation of the country. Those are the three groups 

that the language excluded. 

Mr. GOWDY. Now, Dr. Eastman, what would you do with Mr. 

Cohen’s analysis and how would yours be different? 

Mr. EASTMAN. Well, I think it does that, but it also does much 

more. 

And the reason the Indian example is so important and the Supreme Court’s holding in Elk v. Wilkins in 1884 is so important is 

they were neither ambassadors and they were not foreign invaders 

occupying our territory. They were born in the United States, but 

the Supreme Court held that they did not owe allegiance to the 

United States because they owed allegiance to another power. And 

it’s that question, ‘‘do you owe allegiance to another power,’’ which 

those who are here visiting temporarily on tourist visas or temporary work or student visas and particularly those who are only 

here illegally continue to owe allegiance to a foreign power and, 

therefore, are not subject to the jurisdiction in that broader sense. 

And to read that clause as narrowly as Mr. Cohen does, as the 

dicta in Wong Kim Ark did, as the footnote in Plyler v. Doe and is 

not a holding at all in that case, I think is to make that clause 

largely redundant. 

The main force it would do under that view is to protect—to exclude the children of ambassadors, but they are already considered 

not born in the United States because of the fiction of 
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extraterritoriality, that you know, the sovereignty of the ambassador follows him wherever he goes. And so it doesn’t even do any 

work on that thing. You know, all of the original understanding, 

the debates in the 14th Amendment, the early Supreme Court 

cases and what have you, all added this allegiance piece, that it 

was subject to the complete jurisdiction, not what we call the mere 

territorial or partial jurisdiction. 

Mr. GOWDY. I was somewhat critical. I think it was the Roper 

case where the Supreme Court relied upon what other countries 

are doing in the area of capital punishment. I think it was Roper 

v. Simmons, if I am not mistaken. So it is a little disingenuous for 

me to cite what other countries are doing as a reason for us to do 

it, so I’m not doing that. I’m simply asking why did the other countries to the extent they changed their citizenship policy, what informed and instructed the changes that they went through? 

Mr. EASTMAN. You know, Mr. Feere may have a broader answer 

than I do. My suspicion is that they recognized that automatic citizenship was a powerful magnet to avoid the immigration laws of 

the country. It’s not as powerful as the welfare state, and it’s not 

as powerful as the employment magnet, I’ll concede that. But it is 

the third most powerful one. And if you’re going to have, as I testified at the beginning, if you’re going to have anything other than 

just a free open border, if you’re going to have rules about lawful 

immigration, you have to address those magnets. And I don’t think 

our Constitution compels that we address it in the way we have, 

and that’s the big fight. 

Mr. GOWDY. Mr. Feere, I’ll give you a couple of minutes, and 

then I want to give Mr. Cohen a chance to finish up, and then I’ll 

be out of time. 

Mr. FEERE. Yeah, the research I looked at in terms of what other 

countries are doing on birthright citizenship, I was able to include 

dealing with other government officials, looking at other constitutions, that about 30 of the world’s 194 countries do grant automatic 

citizenship to children of illegal aliens. As I mentioned earlier, only 

two advanced economies in the world, United States and Canada, 

have that practice. 

And the truth is when you start to look at other countries that 

claim to have it, it comes with exceptions. You know, there are certain countries that say, ‘‘Yeah, we welcome citizenship for everyone,’’ but you look at their actual population, you discover that, you 

know, 45 percent of their population is made up of indigenous people who have no right to citizenship. 

You discover that some of these countries are very quick to enforce their immigration laws, never actually end up giving grants 

to children of illegal immigrants. Mexico, for example, tells me they 

are not aware of any situation where that’s actually happened, 

even though they claim to have automatic birthright citizenship. 

On top of it all, if you want to look at Mexico a little bit more, you 

know, they have a very different situation than us. If you are born 

here in the U.S., you could grow up to be President of the United 

States. Not so in Mexico. You’ll never grow up to be president of 

Mexico because their Constitution requires that not only are you 

born in Mexico but your parents are, at least one of your parents 

is as well. 
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So there is still a second-class status for a lot of folks in these 

other countries, but the global trend certainly is moving away from 

automatic birthright citizenship. Many of the countries which once 

had them ended it in recent decades. The U.K. ended it in 1983. 

Australia in 1986. India in 1987. Malta in 1989. Ireland ended the 

practice through a national referendum in 2004, and their biggest 

concern was birth, tourism, people coming there to game the system 

New Zealand in 2006. The Dominican Republican ended it in 

January 2010, and I think that it’s important for Congress to provide specific clarification on this issue. There is plenary power at 

issue here. This is something that’s not just for the courts the decide. The political branches do have a say on immigration. 

Mr. GOWDY. I am out of time, but I promised Mr. Cohen that he 

would be able to address it. If you have any insight—and again, I 

am not often quick to cite what other countries are doing—but if 

you have anyinsight into why the trend is going in that direction, 

be happy for the Committee to take it. 

Mr. COHEN. If I could also, just one quick moment, speak to a 

point that Professor Eastman raised, the Elk case. That was written by Justice Gray, who also wrote the opinion in Wong Kim Ark. And Justice Gray said that the Elk opinion had no application outside of the Indian context. And I think that’s very, very important 

because much of the language that we use or that Mr. Eastman 

and Professor Graglia use is drawn from the context where 

Congresspersons, Senators were talking about Indians, which is a 

much different case. That’s the first point I would make. 

In response to the other issue, I would agree with you that sometimes looking at foreign law is perhaps not the best thing to do. 

And I would also say that our Constitution, you know—and I hope 

that America is exceptional in this regard—it embeds this egalitarian, this deeply egalitarian notion of all citizens being equal by 

virtue of being born here. And I just think that’s such an important 

principle. 

And for those who want to shoulder the burden of changing it, 

they ought to shoulder it by pursuing a constitutional amendment, 

not by suggesting that, you know, they can do it in any other way. 

Mr. GOWDY. Well, I apologize for my colleagues for going over, 

and I am sure that Mr. King will rectify that as we switch spots, 

and he recognizes my friend from California. 

Mr. COHEN. Thank you, sir. 

Mr. KING [presiding]. The Chair would recognize the Ranking 

Member of the Immigration Subcommittee, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. I thank you. In your written testimony, Professor 

Graglia, you say that the two dissenting Justices in the Wong Kim 

Ark case, ‘‘argued correctly that the rulemaking locality of birth the 

criterion for citizenship is based on ancient English law and did not 

survive the American Revolution.’’ 

I was interested today, when I opened up to the Politico online, 

there is an article, and they have, you know, ‘‘What Happened on 

This Day.’’ And what happened on this day in 1789 was the very 

first contested election in the history of the House of Representatives. The House Committee on Elections rejected a challenge to 
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William Loughton Smith’s eligibility to represent Charleston, South 

Carolina. The challenge, brought by David Ramsay, was based on 

the fact that Smith could not satisfy the Constitution’s 7-year citizenship requirement for serving in the House. 

Now, in Smith’s defense, James Madison himself argued, and 

this is a direct quote: ‘‘It is an established maxim, that birth is a 

criterion of allegiance. . . . Mr. Smith founds his claims upon his 

birthright; his ancestors were among the first settlers of’’ of South 

Carolina. Mr. Smith was seated and allowed to serve. 

And I would ask unanimous consent to put that very interesting 

article into the record. 

Mr. KING. Without objection, so ordered. 

[The information referred to follows:] 
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Ms. LOFGREN. In reading the testimony, Mr. Graglia, I think that 

you believe Wong Kim Ark was incorrectly decided 117 years ago. 

Would that be a fair statement of your belief on that case? 

Mr. GRAGLIA. You’re asking me, do I think Wong Kim Ark was 

incorrectly decided? As I said, yes, I do. 

Ms. LOFGREN. Okay. What about Plyler v. Doe that guaranteed 

the undocumented children to a right to public education. Do you 

think that was wrongly decided as well? 

Mr. GRAGLIA. Plyler v. Doe? 

Ms. LOFGREN. Yeah. 

Mr. GRAGLIA. Yes, I do. You see, I take a very limited view of 

the power of the Supreme Court. I think these decisions—— 

Ms. LOFGREN. Right. In reading through some of your other 

writings, I thought I saw that you believed that Brown v. Board 

of Education, that declared separate but equal educational facilities 

were unequal, was also wrongly decided. Is that correct? 

Mr. GRAGLIA. No. 

Ms. LOFGREN. Okay. Well, I’m glad to clarify that. 

You know, I think that it’s important to not only listen to what 

our witnesses say but to consider the source, and so I did do some 

reading and came across this in the New York Times: ‘‘Professor 

Graglia himself has stirred up plenty of controversy before,’’ they 

stated in their 1997 article. In 1986, he was considered a finalist 

for a spot on the Federal Appeals Court but later affirmed the Hopwood decision, but the Reagan administration backed away from 

his nomination after a controversy over his use of the word ‘‘pickaninny’’ in the classroom and his apparent urging of Austin residents to defy a court-ordered bussing plan. 

I would ask unanimous consent, Mr. Chairman, to put this New 

York Times article in the record. 

[The information referred to follows:] 
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Ms. LOFGREN. And now I would turn to Mr. Cohen. You have 

read the statements of all of the other witnesses. Would you care 

to comment or react to any of those statements? 

Mr. COHEN. I would. Thank you. As Professor Graglia pointed 

out or acknowledged, he believes that the Wong Kim Ark decision 

was wrong. I think that’s akin to walking into the machine guns 

at this point in time. 

Professor Eastman, I think, has a more heroic explanation to try 

to defend the case but ultimately one that is equally unsuccessful. 

Professor Eastman argues that Wong Kim Ark’s family tried to 

become as subject to the jurisdiction of the country as they could, 

but his argument is that it requires complete jurisdiction. And he 

acknowledges that the family in Wong Kim Ark did not have complete jurisdiction in the sense that he uses the term. So I think the 

argument is contradictory. 

The other point I would make about both of their testimonies is 

that they quote Mr. Trumball and Mr. Howard, two Senators, with 

words like ‘‘allegiance,’’ ‘‘complete understanding,’’ that kind of— 

‘‘complete jurisdiction.’’ And, again, as I indicated earlier, all of 

those references come from the very unique context of Indians. It 

has no applicability here. 

Finally, I think they both rely almost—very heavily on the language of the 1866 act, ‘‘not subject to any foreign jurisdiction.’’ And 

the language of the 14th Amendment is quite different. It was 

passed or came out of a different committee. And it was drafted by 

different persons, and the Wong Kim Ark case makes it clear that, 

you know, that language was—in the 14th Amendment was intended to be broader, so those would be the basic differences I have 

with their testimony. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

My time is expired, and I yield back. 

Mr. COHEN. Thank you. 

Mr. GRAGLIA. You know, I might say that I think my position on 

Brown has very little to do with this, and your bringing up things 

like that in this alleged mistaken ‘‘pickaninny’’ is in the nature of 

a slur. I don’t know why you are bringing up a these insulting 

things that has nothing to do with what I’m testifying for here. 

Ms. LOFGREN. Mr. Chairman, I would ask unanimous consent to 

be granted a minute to engage Mr. Graglia to explain why. 

Mr. LABRADOR. I object. 

Mr. KING. Hearing an objection, the gentleman has been heard. 

And we’ll yield the 5 minutes to the gentleman from Idaho, Mr. 

Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

Mr. Cohen, this is really an interesting issue for me. And maybe 

I’m going back to my law school years because I’m hearing good arguments on all sides. I have long been a defender of the 14th 

Amendment and birthright citizenship, but I’m hearing some issues 

that need to be addressed by Congress and need to be addressed 

in some way. So I’m seeing this as two separate questions that we 

need to address today. 

First, is the policy of birthright citizenship the right policy for 

the United States? 
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Second—actually three questions. Second, was that policy inherent in the 14th Amendment when it was first passed? 

And third, if we want—if we decide that it’s not the right policy, 

how do we change it? Do we need an actual constitutional amendment, or can we do that through statutes? 

So, as I listen to all the arguments, I heard, I think it was Dr. 

Eastman saying that at the time of the 14th Amendment, there 

was no illegal immigration in the United States. Is that correct? 

Mr. COHEN. Yes. 

Mr. LABRADOR. So don’t you think that makes your argument a 

little bit invalid that the 14th Amendment actually grants birthright citizenship to the children of people that are here without 

documentation? 

Mr. COHEN. I do not, and I can explain. 

Mr. LABRADOR. Please. 

Mr. COHEN. Okay. If you look at the era that Wong Kim Ark was 

decided, there is no illegal or—— 

Mr. LABRADOR. Let me stop you there. 

Mr. COHEN. Sure. 

Mr. LABRADOR. I agree with you that the Supreme Court decided 

the issue with regards to the children of legal permanent residents. 

I agree with you, and I disagree actually with Mr. Graglia that 

it was incorrectly decided, or at least I believe it’s the law of the 

land at this time. And I’m not going to make an argument about 

that. 

But it did not decide whether the children of undocumented 

aliens are granted birthright citizenship. Would you at least agree 

with me on that? 

Mr. COHEN. Well, I would try to make two points, and because 

I grew up in Richmond, I speak very slowly, so give me a—— 

Mr. LABRADOR. Me, too. I grew up in Puerto Rico, and I speak— 

English is my second language—— 

Mr. COHEN. Okay. We’re even then. 

Mr. LABRADOR [continuing]. And I speak very slowly as well. 

Mr. COHEN. The point I’m trying to make about Wong Kim Ark 

is that there was neither legal nor illegal immigration at the time, 

but what we do know is Wong Kim’s parents weren’t eligible for 

citizenship. That was their stain, right. 

Mr. LABRADOR. Right. So we know they were not eligible, but we 

do know that they entered legally, they obtained their legal—— 

Mr. COHEN. There was no legal or illegal about it. 

Mr. LABRADOR. Correct. So there was no illegality about any of 

their actions. 

Mr. COHEN. But the point is that their disability was the fact 

that they could not become citizens. In that era, I would argue that 

that was analogous to being, you know, illegal. 

The second point I would make is, you know, the—— 

Mr. LABRADOR. I just don’t agree with that. I don’t think you can 

analogize going through the process and not going through the 

process as the same thing. 

Mr. COHEN. Well, there was no process. That’s my point. And the 

second—— 
90 

Mr. LABRADOR. There’s always a process, sir. You became a legal 

permanent resident by going through a process of legal—I was an 

immigration lawyer. 

Mr. COHEN. I will tell you then—— 

Mr. LABRADOR. I studied—but then—— 

Mr. COHEN [continuing]. In 1866, there was not. That’s the point. 

Mr. LABRADOR. But they didn’t become legal permanent residents 

by just showing up. They actually had to go to a naturalization center. They had to go through the process of legal—— 

Mr. COHEN. There was no legal or illegal immigration in 1866. 

Mr. LABRADOR. But just being in the United States was sufficient? 

Mr. COHEN. Well, it was—— 

Mr. LABRADOR. Are you sure about that? I am not sure that I 

am. 

Mr. COHEN. I believe that I am. 

Mr. LABRADOR. Okay. 

Mr. COHEN. The second point I would make was, you know, the 

group of people who were perhaps the most analogous to what we 

think of as illegal immigrants today would have been gypsies. They 

were described, you know, in very harsh terms, you know, pariahs 

on the land, described as trespassers where ever they go. To me, 

that’s as close as one can get, and it was without question clear 

that those, the children of gypsies, were intended to be children— 

or intended to be citizens if they were born in this country. I think 

that is as close as one can possibly get. 

Mr. LABRADOR. Wasn’t that pursuant to a treaty with China, 

though? 

Mr. COHEN. No. We’re talking about gypsies. 

Mr. LABRADOR. Yeah, but—— 

Mr. COHEN. No, I don’t believe it was. I believe that the debate 

in Congress between Senator Cowan and Senator Conness has no 

reference to that whatsoever. The—and the Court in Wong Kim 

made that same point. 

Mr. LABRADOR. Dr. Eastman, this is what I’m having a hard time 

with, because again, I may actually disagree with you on this issue, 

but I really find it interesting that we had—there was no illegal 

immigration when the 14th Amendment came into being. And to 

extrapolate from that that today it means that if you’re the child 

of an undocumented alien, that you are then therefore an illegal— 

a citizen of the United States, I don’t see how you can do that. Can 

you—— 

Mr. EASTMAN. I agree with you, Congressman, and the point of 

the Indian exchange is because that was where the question of 

your sovereign allegiance was risen. 

Indian tribes were domestic sovereigns. They were domestic dependent sovereigns, and so if that was not sufficient, they owed ultimate allegiance through their tribe to the United States and that 

was held not to be sufficient to confer automatic citizenship, then 

almost by definition, somebody who doesn’t even have that intermediate connection to allegiance to the United States would not be 

covered by the 14th Amendment. That’s why that discussion is so 

relevant. 
91 

And this exchange about gypsies. I want to real clarify. Representative—or Senator Cowan thought that it would not apply to 

gypsies. When he’s talking about they’re trespassers, he’s not talking about them being trespassing in the United States. He’s talking 

about them trespassing on private land wherever they go. And the 

answer was, of course, their children are going to be citizens because they are here lawfully otherwise and they owe allegiance to 

the United States. Senator—he said Senator Cowan said if a traveler comes here—— 

Mr. LABRADOR. Well, their parents were here legally. 

Mr. EASTMAN. That’s right. And he says if a traveler comes here, 

he gets the protection of our laws. That’s the partial territorial jurisdiction of which Mr. Cohen claims is what the phrase means. 

Senator Cowan—Conness responds: I fail to see how that has anything to do with our 14th Amendment discussion because we’re not 

talking about territorial jurisdiction. We’re talking about the allegiance owing jurisdiction, and of course, if they’re here lawfully, 

they owe the allegiance. That was the key for them. 

And so when you introduce a group of people who do not have 

that allegiance, by virtue of the fact that there is no consent that 

they be here, that they are here unlawfully, that clause in the Constitution simply doesn’t mean that they have automatic citizenship. 

Mr. LABRADOR. Thank you. My time has expired. 

Mr. KING. The gentleman’s time has expired. 

The Chair will recognize the gentleman from Illinois, Mr. Gutierrez, for 5 minutes. 

Mr. GUTIERREZ. Thank you very much. 

Mr. Graglia, I’d like to ask you, in 2012, you made some comments that raised a lot of eyebrows explaining why you feel African 

American citizens are not competitive in college admittance, you 

told a BBC reporter, I quote: ‘‘I can hardly imagine a less beneficial 

or more deleterious experience than to be raised by a single parent, 

usually a female, uneducated and without a lot of money.’’ 

Things turned personal when the reporter told you that since he 

was Black and was raised in a single-parent family, you are saying 

the less ‘‘likely’’ not as smart as a White person of the same age. 

In response you said, ‘‘Well, from listening to you and knowing 

what you are and what you’ve done, I’d say you’re rather more 

smart. My guess would be that you are above usual smartness for 

White, to say nothing of Black.’’ 

Can you explain to us that comment? 

Mr. GRAGLIA. I don’t understand what this line of questioning, 

like Representative Lofgren’s, has to do with this. It seems to me 

some kind of a sleazy underhanded move is being made here. 

Mr. GUTIERREZ. You know—— 

Mr. GRAGLIA. Those are difficult questions. 

Mr. GUTIERREZ. You don’t want to explain this to us? 

Mr. GRAGLIA. Excuse me? 

Mr. GUTIERREZ. You don’t want to explain this? 

Mr. GRAGLIA. I’m sorry. Give me the—— 

Mr. GUTIERREZ. You don’t want to explain your comment? 

Mr. GRAGLIA. Comment? 

Mr. GUTIERREZ. Yeah, the comments that you made to the journalist from the BBC. 
92 

Mr. GRAGLIA. Explain what you—— 

Mr. GUTIERREZ. My guess would be that you, referring to the 

journalist from the BBC, are above usual smartness for White, to 

say nothing of Black. 

Mr. GRAGLIA. I’m not sure I understand that or that I made 

the—I’m not sure I made the comment. 

Mr. GUTIERREZ. Oh, you made the comment. 

Mr. GRAGLIA. I’m not sure I heard the question. 

Mr. GUTIERREZ. You made the comment. Clearly I think it is 

very important. When people are raising issues about changing the 

Constitution of the United States and saying that their motivation 

is one, I think it is very clear to raise issues and statements that 

they have made in the past, especially when it comes to issues such 

as this. But since you don’t want to speak about it, I’ll let it go. 

Mr. GRAGLIA. I have—if I can explain the comment, I have never 

made a comment that in any way implied the inferiority of any 

group to other groups. 

Now, I did say that, you know, sometimes it’s very controversial 

that affirmative action is based on the proposition that other 

groups are not competitive and to get into selective schools require 

preferences. Now that just is a statement of fact, but it still is very 

controversial and very emotional. But it’s got nothing to do with 

the quality of people that I think you’re implying. 

Mr. GUTIERREZ. I ask unanimous consent—it’s titled ‘‘UT Law 

Professor Raises Pulses on Race in Admissions,’’ by Rose Cahalan, 

in 40 Acres, Special, on December 12, 2012. So it’s right around the 

corner, just 3 years ago: In 1997, Texas Monthly called UT’s Lino 

Graglia the most controversial law professor in America. This week 

he’s living up to the title by raising pulses with his comment in 

BBC radio interview on race in admissions. In the interview, 

Graglia tells the BBC reporter that he believes African American 

students can’t compete in college admissions. 

Do you believe African American students can’t compete in college admissions? 

Mr. GRAGLIA. No, I do not believe they can’t compete. 

I do say the reason you have race preferences to selective institutions is that by equal competition, you get very few proportional 

representation. And I’m explaining what affirmative action is 

about. That’s what it’s about. 

Mr. GUTIERREZ. I would like unanimous consent that it be put 

in the record. Chairman? 

Mr. KING. There’s a unanimous consent request to place a document into the record. Do I hear any objections? 

Mr. GUTIERREZ. Thank you. 

Mr. SMITH. I would like to know—— 

Mr. GUTIERREZ. I want to go—— 

Mr. SMITH [continuing]. The nature of the document. Meanwhile, 

I’ll reserve the right to object. 

Mr. KING. Sure. The gentleman reserves the right to object. 

Please proceed 

Mr. GUTIERREZ. Pass that over to my colleague from Texas. 

I would like to now go to Mr. Cohen for a moment. There are 

those that look at today’s hearing and think that there’s a relationship with today’s hearing and the 13th and 14th Amendments to 
93 

the Constitution of the United States. How do you see today’s hearing? 

Mr. COHEN. I am so sorry, but I could not hear you. 

Mr. GUTIERREZ. I’m sorry. There are those who believe that today’s hearing has serious implications, historical implications, in 

relationship to the 13th Amendment to the Constitution and the 

14th Amendment to the Constitution. How do you see the relationship of today’s hearing vis-a-vis those two amendments of the Constitution? 

Mr. COHEN. Well, I think whenever we talk about amending the 

Constitution, it’s something that we have to do so with great caution. You know, the Constitution, since the enactment of the Bill 

of Rights simultaneously with the ratification of the Constitution, 

has only been amended 23 times in over 200 years. And so, first, 

I think we have to have a darn good reason to do it. 

When we talk about amending our Constitution to take away 

some core rights that relate to equality and the egalitarian ethos 

that animates our country, I think we ought to be particularly concerned. 

Mr. GUTIERREZ. Thank you. And can you—how would I say 

this—weaken, abridge birthright citizenship without challenging 

the 14th Amendment to the Constitution of the United States? 

Mr. COHEN. No. It’s clear—the Court made clear in Wong Kim 

Ark that the only way that it could be done would be by a constitutional amendment. 

Mr. GUTIERREZ. Okay. So really what we’re having here is a conversation that has to lead to a change in the Constitution of the 

United States. 

Mr. COHEN. I would agree if that’s the course that the proponents want to take. 

Mr. GUTIERREZ. I guess we are going to have birthright citizenship for a long time. Thank you so much. 

Mr. COHEN. Thank you. 

Mr. KING. The gentleman yields back. 

And the Chair would request if the gentleman from Texas would 

consider his reservation on the point of order. 

Mr. SMITH. Mr. Chairman, I am going to withdraw my objection 

simply because Professor Graglia has already answered an editorial 

comment by a magazine writer and who offered no direct quotes by 

the professor. So I think the professor has already adequately answered any question about a nongermane subject to this hearing. 

Mr. KING. Since the gentleman from Texas has withdrawn his 

reservation, the documents requested by the gentleman from Illinois will be entered into the record. 

[The information referred to follows:] 
94 
95 
96 

Mr. KING. And the Chair will recognize the gentleman from 

Texas for 5 minutes. 

Mr. GUTIERREZ. It’s in the record. 

Mr. SMITH. Thank you, Mr. Chairman. 

One, I just want to point out this is a very significant hearing, 

and I think we all know that. Somebody else has already mentioned that this is the first hearing on this important subject in 10 

years. Also, I want to mention a recent Rasmussen poll, which 

showed that a majority of the American people do not support automatic birth citizenship, and I think that is significant as well. 

Now, we also have the trend among industrialized Nations away 

from birthright citizenship. There is only one other country now, 

beside the United States, that doesn’t require at least one parent 

to be in the country legally, and I think that is a positive—positive 

trend. 

Now, let me say that I feel that the only way you can justify saying that a constitutional amendment is required to clarify the 14th 

Amendment is if you ignore the Constitution itself, which gives the 

power to Congress to set immigration policy. You can only justify 

a constitutional amendment if you ignore the intent of the Senator 

who introduced the 14th Amendment, who clearly said on the Senate floor at the time of debate on the 14th Amendment that it ‘‘did 

not apply to foreigners.’’ And I think you can only justify the constitutional amendment route if you raised the distinction between 

legal and illegal immigration, none of which I feel that you should 

do. 

And I just wanted to make sure that we have on the record that 

Dr. Eastman and Professor Graglia and Mr. Feere all feel that we 

could clarify the 14th Amendment by statute alone. And, presumably, that would be challenged and then go to the Supreme Court, 

but to my knowledge, the issue at hand, birth citizenship has never 

reached the Supreme Court and is likely to do so because of the 

standing problem only if the statute is passed by Congress. So I 

guess I have a twofold question. 

Do you all—do all three of you agree that we could clarify the 

14th Amendment by statute, and do you feel that that’s the only 

way we will actually resolve the issue, or is there another way for 

someone to get standing? 

Mr. EASTMAN. Representative Smith, I agree. And I will say this, 

if Mr. Cohen was correct, that the 14th Amendment was clear, 

then the only way you can remove birthright citizenship would be 

by a constitutional amendment. The dispute here is whether that 

phrase ‘‘subject to the jurisdiction’’ is clear, and I think that the 

legislative record, the early Supreme Court cases, make clear that 

it doesn’t mean automatic birthright citizenship for everybody, but 

it’s at least ambiguous. 

And Congress weighing in on what it understands that phrase to 

mean would be an important step. Wong Kim Ark clearly does not 

settle the question for the children of illegal immigrants, neither 

does the Plyler v. Doe. And it’s important to understand how high 

the floor that the Constitution set and how much it intruded on 

your power over naturalization when we adopted the 14th Amendment because the further higher up we read that phrase, the less 
97 

power the Congress has under its naturalization clause. And so 

there’s a direct conflict here that needs to be sorted out. 

Mr. SMITH. And, Professor Graglia, do you agree with that, too? 

Mr. GRAGLIA. I would like to say that the central question here, 

obviously, is how should this jurisdictional clause be interpreted. I 

teach a course currently called ‘‘Statutory Interpretation,’’ and certainly a prime principle is you should never interpret or can’t interpret a statute to reach an absurd result. And if the—if the jurisdictional clause provides for birthright citizenship of illegal aliens, 

what you’ve done is you say you have a situation where, on the one 

hand, it’s illegal to enter the country without permission, but what 

this law means that if you do it, you’re a citizen. 

I would say that can’t mean that. You know, as Justice Jackson 

said, if anyone makes an argument like that, the Constitution requires an absurd result, that can’t be. And bolstering that is what 

Professor Eastman said. The Constitution says you have to be born 

and jurisdiction. Born puts you under some jurisdiction. So, unless 

the jurisdictional clause is redundant, it has to add something. 

Mr. SMITH. Right. I agree. I think to allow the birth citizenship— 

by the way, I don’t think we ought to say birthright. I don’t think 

it’s a right. It think it’s just automatic birth citizenship. I think it 

defies logic and defies common sense. 

Mr. Feere, I think I have time for one more question, and that 

goes to the cost of birthright citizenship. You’ve done some research 

on that issue, as I understand it, and give us an idea beyond what 

you have already as to the cost of government benefits as a result 

of a policy that seems to allow 10 percent of the births in the country to be to an illegal parent. 

Mr. FEERE. I mean, it’s hard to measure cost. It depends on how 

you want to look at it. We do estimate, the Pew Hispanic Center 

also estimates that somewhere between 350,000 and 400,000 children are born to illegal immigrants every year. It’s difficult to estimate how many birth tourists there are. We have a very rough estimate. It could be as high as 35,000, 36,000 people per year as 

birth tourists. And, of course, those do come with costs, you know. 

Any type of cost that a person generates is going to be factored into 

these—this analysis. 

But for the example of children born to illegal immigrants, we, 

obviously, as a Nation, we provide them public education paid for 

by the taxpayer, and the—since per-student expenditures in the 

United States are roughly about $10,000 per year, it’s likely that 

somewhere around $13 billion goes toward the education of illegal 

immigrants in public schools. 

Now, if you look—just looking at U.S.-born children of illegal immigrants, the cost is approximately $26 billion per year, and I don’t 

think any Americans would say that we shouldn’t try and educate 

those who are here in our country, but the reality is it does come 

with actual cost—— 

Mr. SMITH. It does have a cost. 

Mr. FEERE [continuing]. That don’t really get addressed. 

Mr. SMITH. Thank you, Mr. Feere. 

Thank you, Mr. Chairman. 

Mr. KING. The gentleman from Texas yields back. 
98 

And the Chair would recognize the gentlelady from Texas for 5 

minutes, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you, Mr. King. Thank you for presiding 

at this time. 

Let me thank the Ranking Member for her presence and leadership on these very important issues. 

First of all, let me welcome Mr. Cohen. We’ve spent a lot of good 

time together. Thank you for enormous leadership on any number 

of important issues. 

Mr. COHEN. Thank you. 

Ms. JACKSON LEE. You know, I was—I was just—I have a question for the professor, and I was just listening by way of my staff 

of the overall view of the gentleman that are, I think, to your left 

or right but sitting alongside of you, and I thought I would pull out 

the 14th Amendment and read it as I had interpreted it. And it has 

not been contravened, I don’t believe. And that is—and Mr. Cohen, 

you can just shake your head. I’m not going to come to you right, 

but I wanted you to be prepared where I’m going. Is that 14th 

Amendment has the issue of naturalized—the 14th Amendment 

has the issue—I mean, I’m not coming to you right now, but I’m 

laying the prep—a sort of a groundwork for the question. 

The 14th Amendment has all persons born or naturalized in the 

United States and subject to the jurisdiction are citizens. But it 

goes on to say that individuals have due process rights. There is 

an argument at the table here as to whether or not undocumented 

visa holders are under the jurisdiction. I think that question fails 

to their—to their loss because we have due process rights, whether 

you are statused or not, and you are subject to police jurisdiction 

for sure and the ability to be arrested for a variety of things beyond 

your status, or to press charges or a number of things that are jurisdictional and then just subject to the jurisdiction of the laws of 

this land. 

But let me—I’ll come to you, Mr. Cohen. I just wanted you to be 

prepared of what my thinking is. I wanted to raise this question 

with Professor Graglia. In the law review article that you attach 

to your testimony, you wrote that Wong Kim Ark decision to adopt 

the English common law rule for citizenship argues against birthright citizenship for the children of undocumented immigrants. 

This follows, you said, from the Supreme Court’s recognition that 

under common law, children of alien enemies born during and 

within their hostile occupation of a country do not obtain citizenship in the occupied country. 

Do you think a student who overstays his visa is an enemy of 

the United States, is number one? When a mother who was previously deported, reenters the country unlawfully to join her husband and children, is she part of an invading army? Is she engaged 

in a hostile occupation of our land? Occasionally we hear people 

refer to the act of illegal immigration as an invasion. John Tanton, 

who essentially founded the modern anti-immigrant movement, has 

a long history of racist and nativist remarks, wrote a book 20 years 

ago called ‘‘The Immigration Invasion.’’ 

Do you similarly believe that people who enter the country legally are for all intents and purposes invading our country? Did 

you get all three of those, Mr.—Professor Graglia? 
99 

Mr. GRAGLIA. I’m afraid I didn’t get the question. 

Ms. JACKSON LEE. Do you think a student who overstays his visa 

is an enemy of the United States? 

Mr. GRAGLIA. Do I think that a student—— 

Ms. JACKSON LEE. That overstays his visa is an enemy of the 

United States? 

Mr. GRAGLIA. No, not necessarily an enemy, by no means, no. 

Ms. JACKSON LEE. Do you think a mother who is coming back to 

be with her family and was deported, do you think that she is— 

invades a hostile occupation of the land? 

Mr. GRAGLIA. No, ma’am. Why would I say a thing like that? 

Ms. JACKSON LEE. I appreciate you saying that you don’t believe 

that. 

And, then, do you believe that individuals who come back into 

the country after being deported, who are seeking to be with their 

family, do you believe that they are invading our country? 

Mr. GRAGLIA. You know, I don’t understand the basis of these 

questions. The answer is no. That sounds like a silly thing. 

Ms. JACKSON LEE. Well, I’m glad. I agree with you, it sounds 

very silly. 

Mr. GRAGLIA. Okay. 

Ms. JACKSON LEE. That’s why I want to go to Mr. Cohen. 

Mr. GRAGLIA. Well, I mean, I hope you’re not implying I’ve said 

or implied any such thing. 

Ms. JACKSON LEE. I—I want to make the record clear that you 

don’t believe that these are hostile invaders. 

May I go to Mr. Cohen, please. 

Mr. GRAGLIA. I do not believe they’re hostile invaders. I’m very 

clear about that. 

Ms. JACKSON LEE. Thank you, professor. 

Let me go to you, Mr. Cohen. You know the 14th Amendment is 

reminiscent of a bad history in the United States, one of slavery. 

And, certainly, we know this is the 150th year of the 13th Amendment. 

But how would you answer any legitimate reason or basis to take 

away a birthright from an individual born in the United States on 

the basis of the 14th Amendment and, also, our right to due process? 

Mr. COHEN. Well, I don’t think an argument could be made from 

the current Constitution. The point that you made earlier is the 

point that a unanimous Supreme Court made in the Plyler case. 

Plyler was a 5-to-4 decision on the question of whether undocumented children were entitled to a free public education, but all 

nine Justices agreed that persons who were undocumented were 

within its jurisdiction for purposes of the due process and equal 

protection clause. All nine Justices also agreed that that word— 

that phrase ‘‘within its jurisdiction’’ would be interpreted in a predominant geographic sense, just as the term ‘‘subject to the jurisdiction’’ is in the first sentence of the—of the 14th Amendment. 

That is exactly the same decision or interpretation that was 

given in the Wong Kim Ark case. So, unless one does radical surgery on the 14th Amendment, I don’t think that one could accommodate some of the views that we’ve heard here today. 
100 

Ms. JACKSON LEE. So our Constitution, then, really supports the 

policy which this question asks, Is that citizenship birthright a 

right policy? I could—— 

Mr. COHEN. It embodies—— 

Ms. JACKSON LEE [continuing]. Answer it any other way but yes. 

Mr. COHEN. It embodies it, yes. 

Ms. JACKSON LEE. I thank you. I thank the gentlemen, and I 

yield back. Thank you very much. 

Mr. KING. Gentlelady from Texas has yielded back. 

And we’re going to stick with the Texas theme and recognize the 

gentleman from Texas, Mr. Ratcliffe. 

Mr. RATCLIFFE. Thank you, Mr. Chairman. 

I’d like to thank the witnesses for being here today to talk about 

this very important issue. The 700,000 Texans that I have the opportunity to represent, like most Americans, are deeply concerned 

about the impacts of illegal immigration in this country. 

Before coming to Congress, I had the opportunity to serve many 

of these same constituents in my role as the United States attorney 

for the Eastern District of Texas. Back in April of 2008 in that role, 

I arrested some 300 illegal aliens that had committed Social Security fraud and identity theft against hard-working Americans. Now, 

my actions in that regard were not a matter of choice. I had taken 

an oath to faithfully execute the laws of the United States. That, 

by the way, is the same oath that the President takes, to faithfully 

execute the laws of the United States. 

And so many of my constituents are frustrated with what they 

are seeing right now as a willful disregard for the rule of law in 

this—in this country. And, given that broader context, my constituents are concerned that the 14th Amendment that we’re talking 

about today, the citizenship clause of the Constitution, is interpreted in a way that gives children of illegal aliens citizenship at 

birth. 

So many of the folks that I represent feel that the current policy 

encourages folks to come to the United States solely for that purpose, and there is ample evidence out there of this fact. Just back 

in March, the Wall Street Journal reported that Federal agents 

had raided several sites in California that were connected to different multimillion dollar birth tourism businesses or anchor baby 

businesses. And I think Mr. Eastman, I believe, or maybe Mr. 

Ferre talked about the fact that this is an industry where maybe 

350,000 to 400,000 children are being born to illegal immigrants in 

the United States, and that just really brings this issue into focus 

for so many. 

So I’d like to start, Mister—Dr. Eastman, with a question for 

you. I’ve understood your testimony to be here today the same as 

Mr. Graglia and Mr. Feere that Congress does have, in your opinion, the ability to deal with this issue statutorily, as Mr. King 

would like to do, as opposed to requiring a constitutional amendment. Is that correct? 

Mr. EASTMAN. That is correct. 

Mr. RATCLIFFE. All right. So, given that, I’d like to—for you to 

comment on the importance, from your perspective, of Congress 

moving forward and settling this issue once and for all and exercising its constitutionally provided power over naturalization. 
101 

Mr. EASTMAN. Sure. And if I may incorporate an additional brief 

response to Representative Jackson Lee in that because I think it’s 

important to get beyond the gotcha game that’s going on here. 

The reason even illegal immigrants are protected by the due 

process and equal protection clause is because those phrases use 

the word ‘‘person,’’ all persons. There’s nobody that claims that 

they are equally protected by the privileges and immunities clause, 

which applies only to citizens. 

The question for the citizenship clause is in which box illegal immigrants fall. Are they citizens entitled to all three protections in 

the 14th Amendment or persons who are not citizens that get due 

process and equal protection rights as well? 

And it’s my contention and Professor Graglia’s contention that 

the ‘‘subject to the jurisdiction’’ clause raises an additional requirement than mere birth on U.S. soil. Clarifying that to what the floor 

of the Constitution actually requires is critically important so that 

you can address the policy questions on whether it makes any 

sense whatsoever to have limitations on immigration and yet, if 

you flout our laws, you get the Holy Grail of American citizenship. 

And I don’t think the Constitution prevents you from addressing 

that fundamental policy question. And the notion that it does, I 

think is absurd. And that’s what we’re trying to clarify here. 

Mr. RATCLIFFE. Thank you, Dr. Eastman. 

Mr. Cohen had testified earlier and talked about—and I’m 

quoting here, the ‘‘principle of citizenship by birth that is as old as 

this nation’’ and cited in connection with an 1830 Supreme Court 

case, Inglis v. Trustees of Sailor’s Snug Harbor. Are you familiar 

about that case at all? 

Mr. EASTMAN. Yes, I am. 

Mr. RATCLIFFE. Okay. And so do you agree with Mr. Cohen’s testimony? 

Mr. EASTMAN. No. I don’t. And, quite frankly, I’m stunned—and 

Representative Lofgren made the same error. The language that 

they’re both quoting, in his testimony and her opening statement, 

is from the dissenting opinion in that case. 

The majority actually held that the individual was not a U.S. citizen, despite the fact that they were born in New York. Justice 

Story goes on to offer further explanation in his dissenting opinion, 

and he says this: To constitute a citizen, the party must be born 

not only within the territory—that’s birth within the United 

States—but within the legiance of the government. That’s exactly 

the point I’ve been making about what the 14th Amendment requires. 

Mr. RATCLIFFE. Thank you, Dr. Eastman. 

Gentlemen, I appreciate all of you being here. I have questions 

for all of you, but they didn’t give me enough time. 

So I will yield back. 

Mr. KING. The gentleman from Texas yields back. 

And the Chair recognizes himself for 5 minutes. And I thank the 

witnesses for your testimony here today. 

I’m just recapping how this works to me. Two questions out 

there. One is the policy question, and the other is the constitutional 

question. 
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Now, if we could just take this to the policy question for a moment—and I’ll just speak to that—that when I look around the 

world and I see countries that have a policy like this and the list 

of countries that have a policy like this, the only one in the modern 

industrialized world that seems to retain this policy is Canada, 

plus the United States. And the rest of them, I don’t know if anybody has lined up in any long lines to get into those other countries 

that do have a birthright citizenship as part of their policy. 

I listened to people—representatives from the Dominican Republic talk about what’s happening with Haiti being their neighbor 

and how they essentially analyzed their constitution and found a 

way to reverse that a few years ago to their benefit. 

And so I don’t think I’m hearing an argument as to why it would 

be a good idea to grant automatic citizenship to any baby that 

could be born in the United States to any mother who could find 

a way to get into the United States. That hands over the immigration policy to everybody except Americans. And so I don’t know 

that that’s even a debate before this Committee, unless you want 

to expand your political base by any means necessary. 

Second thing comes back to, then, is the constitutional question, 

which I was confident of when I walked in this room today and I 

remain confident of that position, but the question to pose really 

is: How do we get the constitutional question answered? And the 

way to get the constitutional question answered is, is anybody 

going to litigate today? I don’t think so. We have to have a statute 

in order to trigger that constitutional litigation. 

And, as I examine through this, if that’s the case, I don’t know 

what’s left out here to be answered by this Committee or by the 

witnesses if—if it’s the majority opinion of this Committee that it’s 

not a good policy to grant automatic citizenship to any baby born 

on U.S. soil for any reason whatsoever, other than a couple of light 

exceptions, if it’s not a good policy, then how do we get to a good 

policy to rescind and reverse this practice that has grown? 

And so I just go—I would turn to Mr. Cohen and I wanted to ask 

you for the record, watching the President’s policies on immigration 

that have emerged from the Oval Office, I presume, on DACA and 

DAPA and the Morton memos and these components that have put 

this country through this strife that we have, you have looked at 

those constitutionally—and I don’t want to editorialize on those— 

but could you just give me kind of a yes or no or a general idea 

whether you believe that they are constitutionally founded? 

Mr. COHEN. You know, I don’t feel confident to offer an opinion 

on that subject—— 

Mr. KING. Okay. 

Mr. COHEN [continuing]. Quite frankly. 

Mr. KING. And that’s fine. That wasn’t a subject to come before 

this Committee, and I appreciate that. 

I just make the point that the President is making up immigration laws as he goes. I don’t think that there’s a solid argument 

that the President has the authority to legitimate. And Article I 

says all legislative powers herein shall be granted—shall be vested 

in a Congress of the United States. And that’s the House and the 

Senate. And so that’s the statutory part of this. 
103 

But I would pose this to Mr. Eastman: On the same premise that 

the President asserts that he has a constitutional authority to, I 

would call it, legislate an immigration power and grant a ‘‘lawful 

presence’’—and I put that in quotes—to the DAPA recipients, the 

DACA recipients and the others that are picked up in the Morton 

memos, on that premise, could not the next President of the United 

States end birthright citizenship based on the same rationale? 

Mr. EASTMAN. Well, I suppose based on the same rationale. I 

would hope the next President of the United States would take 

more seriously the obligations of the Constitution than, I think, 

this President has manifested on that precise issue. I don’t think 

he has the constitutional authority to do that. 

And I’ll go back to what I said before. If—if Mr. Cohen is right 

that the Constitution mandates birthright citizenship for everyone 

born in the United States no matter what the circumstances, it 

would take a constitutional amendment to revise that. I believe 

he’s wrong about that. I believe all the evidence strongly supports 

that he’s wrong about that. That’s the issue that remains open and 

that needs to be tested. 

Mr. KING. Thank you. 

And, Mr. Feere, I didn’t hear from you. And if you’d go a little 

more broadly on the—on the policy side of this—— 

Mr. FEERE. Right. 

Mr. KING [continuing]. And the effects of this to society. Is 

there—is there a limitation that we could expect if this practice 

goes on and, say, the next Congress and the next President simply—or if there’s a constitutional amendment that guarantees this 

birthright citizenship, can we—I want to say, can we confer citizenship on people that don’t even want it and how do—what—what 

happens to the demographics of America if this policy is not reversed? 

Mr. FEERE. Well, one of my concerns is that this whole debate 

is the result of a phenomenon that is sort of happening without 

anyone at the helm. No one is really clear exactly when the first 

illegal immigrant was entered into the country. No one is really 

clear as to when the first birth tourist came here. 

But the Administration—some Administration decided to say, 

you know what, go ahead and give them a Social Security number, 

give them a U.S. passport. And it just sort of happened at some 

point. And no one really knows when. 

And I think Congress hasn’t addressed problem. And, as a result 

of not addressing it, we rely on floor statements from 100 years 

ago. We’re relying on a footnote from a Supreme Court case in 

1982. And I think some clarification on the issue from Congress 

would help a lot. 

And to the issue—to the idea that Congress can’t legislate on 

constitutional matters, one of the Committee Members, Congresswoman Jackson Lee this session, I believe, has a bill that would 

narrow the scope of the Second Amendment. It would raise the gun 

ownership from 18 to 21, I believe. So she clearly believes that 

Congress has a role in, you know, interpreting and deciding the 

scope of constitutional amendments. As I mentioned in the opening, 

Senator Harry Reid believes the same thing, at least, did at one 

point. So I think—— 
104 

Mr. KING. We’ll get that quote into the record. 

As my clock is ticking, Mr. Feere, I’d like to just turn the last 

question to Mr. Cohen. 

And, Mr. Cohen, you heard Mr. Graglia testify that the reward 

for committing the crime of unlawful entry—the reward for committing the crime of unlawful entry into the United States is conferring automatic citizenship on the child that you might give birth 

to in the United States. 

Can you give another example of a reward for law breaking—for 

committing a crime, specifically a crime, and a reward that’s conferred in any aspect of U.S. law? 

Mr. COHEN. No, I can’t. 

But the reward is not—or the penalty is not something that 

should be borne by the innocent child. That would be the argument 

I make. And I would say the argument is as old as Bible. 

Mr. KING. And reclaiming my time—and I appreciate the gentleman’s response—and I would say that if we had that same sentiment applied to the people who are locked up in our prisons, there 

wouldn’t be anyone in our prisons. 

So I appreciate the testimony that we received today. It concludes today’s hearing. And I want to thank all our witnesses for 

attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is now adjourned. 

[Whereupon, at 3:31 p.m., the Subcommittee was adjourned.] 
(105) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security 
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