Anchor baby
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Anchor baby is a colloquial pejorative [citation needed] term referring to a child born in the US to illegal immigrants or other non-citizens. The term was coined by nativists to refer to the child's role in facilitating "chain migration" under the provisions of the Immigration and Nationality Services Act of 1965. The baby becomes the "anchor" of the chain by which its family may receive benefits from social programs, and may themselves eventually become citizens of the United States. The term "anchor babies" is also used to refer to children born to women who are legally in the US on temporary visas (for example a visitor’s visa) when the child's birth is specifically intended to attain citizenship under US law. Sometimes the term jackpot baby is used interchangeably with, the term anchor baby, however this use is always derogatory.
Legal Background
Fourteenth Amendment
Proponents of denying Anchor Babies citizenship explicitly reject Jus soli, or birthright citizenship. They insist on a strict Jus sanguinis, "right of blood", process for obtaining the rights of nationality. While both philosophies have long histories in European civilization, the United States Constitution has included implicit acceptance of Jus Soli from the beginning. (e.g. "No person except a natural-born citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;" U.S. Const. art. I, § 5, cl. 5)
The Fourteenth Amendment to the Constitution states that:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
According to Congressional records of the original debate on the Amendment, the phrase "subject to the jurisdiction thereof" was specifically inserted to make it clear that a person is not a citizen simply by the location of their birth. The intent allegedly being that children born to foreign citizens would fall under the jurisdiction of their parent's respective governments, unless their parents are entirely under the jurisdiction of the United States[1].
Some argue that since almost no alien is ever completely outside the jurisdiction of their home country, almost no alien would ever be entirely under the jurisdiction of the United States. Senator Jacob Howard, the author of the clause, postulated that "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States". While the US Supreme Court may consider the original intent of the authors, it is not bound by it.
As a matter of historic legal precedent, an alien entering any foreign country subjects himself to the jurisdiction of that country, unless exempted by war or treaty. In application, a modern sovereign state has jurisdiction over all foreigners within its territory except foreign heads of state, diplomats and other high-level government figures. This is reflected in US immigration law in that the child of a foreign ambassador born inside the United States is not a US citizen at birth. (The same situation for a foreign soldier on exchange would yield a US citizen baby). Because he is outside the jurisdicion of the United States, the ambassador is are also immune from other US laws (like drunk driving).
Elk v. Wilkins
The United States Supreme Court first ruled on the meaning of this phrase in Elk v. Wilkins, 112 U.S. 94 (1884). The Court determined that children born domestically to American Indians, were actually under the jurisdiction of the tribe, which itself had no allegiance to the United States, and was therefore not under the jurisdiction of the United States.
United States v. Wong Kim Ark
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended (re-affirmed) U.S. jurisdiction to include all aliens lawfully residing within the United States, who were not explicitly protected from its jurisdiction by treaty. This includes most temporary residents, soldiers and immigrants, but not diplomats and agents of foreign governments. The subject of Wong Kim Ark was a child of chinese citizens who were permanent residents. Wong Kim Ark also resided in the US, never renounced his citizenship, and never moved his residency outside of the United States.
There have been several subsequent cases involving the citizenship status of people born to aliens legally within the United States, but the Supreme Court has never explicitly ruled whether-or-not the Fourteenth Amendment grants children of illegal immigrants automatic citizenship. The actual "application" of Wong Kim Ark to the domestically born children of illegal aliens originates from the use of birth certificates as proof of citizenship.
In the case of aliens inside the United States on visas, a High Court ruling is probably unnecessary. Most visas are established by treaty, and by treaty, the jurisdiction of the United States might not be absolute, however; these treaties usually define the citizenship status of children born abroad. The Supreme Court briefly approached this issue during Hamdi v. Rumsfeld[2]. Hamdi, who was born in the U.S. to Saudis on a temporary visa, was referred to as a "presumed American citizen" by justices Scalia and Stevens. The immigration aspects of the case were pursued no further than this title; however, it may be persumed that these two Supreme Court justices questioned the definition of jurisdiction, as it has been interpreted from Wong Kim Ark.
Traditionally, by amicably entering the country, with the intent of respecting its laws and people, foreigners submit themselves to U.S. jurisdiction. People opposed to the practice of anchor babies, such as Representative Tom Tancredo, have proposed that illegal immigrants do not subject themselves to the jurisdiction of the United States[3]. The very act of entering the country without permission is in defiance of its laws, as is their continued presence inside its borders, and the activities associated with that continued presence. In this argument, illegal immigrants are functionally more like the Native Americans in Elk v. Wilkins, than the immigrants in Wong Kim Ark, and should be considered as still being under the jurisdiction of their home country. In Plyler v. Doe, 457 U.S. 202 (1982) the Supreme Court ruled that illegal immigrants inside a State's borders were within its jurisdiction, however; this ruling is in relation to the State's duties to provide an education to the children of those aliens. The above reasoning has only been proposed as a defense to a possible constitutional challenge to new legislation and has been unheard by the Supreme Court.
Congressional actions
The citizenship of all persons born within the United States may still be decided by an Act of Congress, as was done for Native Americans in the Indian Citizenship Act of 1924. The Citizenship Reform Act of 2005 (currently proposed as H.R. 698) would amend the Immigration and Nationality Act to clarify that the domestically born children of foreign nationals are not granted automatic citizenship. This Bill, if passed, will probably be challenged to the Supreme Court. Whether-or-not it stands will depend on how the Supreme Court views the jurisdiction of the United States over illegal aliens. Some legislators have proposed that the citizenship clause be changed through a constitutional amendment; however, no amendment has yet been presented to the States for ratification.