Why the Citizenship Clause Should Be Taken More Seriously: A Response to Margaret Stock

By Jon Feere and Jon Feere on October 30, 2011

Immigration attorney Margaret Stock recently responded to my latest Backgrounder in an attempt to marginalize the issues surrounding citizenship as it relates to children born to foreign diplomats. My full report, "Birthright Citizenship for Children of Foreign Diplomats?", is available online. The point of the report is that, although the numbers involved are small, the lack of any mechanism to prevent the U.S.-born children of foreign diplomats – the one group that everyone agrees is ineligible for citizenship – from acquiring all the attributes of citizenship is indicative of our lack of seriousness about the whole subject of who is, and is not, a U.S. citizen.

For most Americans, businesses, and federal employers, the U.S. birth certificate is the first document turned to in order to prove U.S. citizenship. However, Ms. Stock, along with the State Department, is asking the American people to stop thinking of a U.S. birth certificate as proof of U.S. citizenship. So far, such sentiment is not being embraced and, as I'll explain below, national security-related jobs reserved for U.S. citizens could easily go to children born to foreign diplomats (i.e. non-citizens) as a result of our nation's loose birth certificate and Social Security number issuance standards. As I noted in the report, if children born to foreign diplomats are not to be considered U.S. citizens, they should not be issued birth certificates and Social Security numbers identical to those issued to U.S. citizens.

Ms. Stock's response is not only riddled with inaccuracies, it is yet another example of how immigration attorneys are hostile to the idea of regulations relating to citizenship, sovereignty, and constitutional standards, at least to the extent that such regulations would protect the value of U.S. citizenship. In the end, she seems to acknowledge that children born to foreign diplomats are not to be considered U.S. citizens, but because she fails to see (or care) how issuance of U.S. birth certificates and SSNs to these children blurs the citizenship line, she provides no solution. The sad reality is that for most immigration attorneys, elimination of the line between citizen and alien is their endgame.

As it stands today, the limiting language in the 14th Amendment's Citizenship Clause has been somewhat erased by loose administrative standards that result in non-citizens – here, children born to foreign diplomats – being able to take advantage of opportunities reserved for U.S. citizens. A bigger issue, of course, is whether children born to illegal and visiting aliens should be considered U.S. citizens and why such grants of citizenship weaken the Citizenship Clause, but that issue was discussed at length in my earlier piece, Birthright Citizenship In the United States: A Global Comparison, also available online.

Ms. Stock's article is online, but I've pasted most of it below, removing only some of the patronizing dicta for the sake of brevity. Her analysis begins:

Contrary to what CIS implies, a person is not a U.S. citizen merely because he or she possesses a Social Security number. … Over the years, the requirements to obtain a SSN have tightened as the number has slowly morphed into a "de facto" national identity number – but even today, the Social Security Administration does not have the power to confer U.S. citizenship on anyone merely by issuing a number. Many non-citizens are entitled to SSNs – and a U.S. citizen is not required to have a SSN unless the citizen seeks to work for a U.S. employer, pay U.S. taxes, or apply for certain government benefits.

Contrary to what Stock writes, nowhere in the report do I imply that a Social Security number makes a person a U.S. citizen; in fact, I point out that there are instances in which non-citizens can obtain them. Of course, in order for a non-citizen to obtain a SSN, they must apply and go through a vetting process. Because SSNs are granted to anyone and everyone by birth (including people who are non-citizens under the 14th Amendment), this vetting process is easily overcome, meaning an alien who is possibly not entitled to a SSN nevertheless receives one at birth. Furthermore, a person with a validly-issued U.S. birth certificate in one hand and a validly-issued SSN in the other is generally going to be considered a U.S. citizen by most federal agencies, non-governmental entities, and Americans. According to the U.S. Citizenship and Immigration Services, a "birth certificate provides proof of citizenship." Stock provides no solution to these problems.

As Stock points out, the SSN has taken on much significance and serves as a form of national identification. This is precisely my point. The birth certificate and SSN are so critical to verifying identification in the United States that it behooves Congress to direct federal agencies to be a little more careful in issuing documents that, when combined, create the appearance of U.S. citizenship. If children born to foreign diplomats are, as the State Department told me, "entitled" to U.S. birth certificates, then Congress should consider requiring use of different birth certificates for those not born "subject to the jurisdiction" of the United States. Better regulation of SSN issuance is also necessary.

Stock continues:

CIS recommends that the "problem" – which it identifies as the children of diplomats receiving U.S. birth certificates after they are born in the U.S. – be solved by conditioning the issuance of a U.S. birth certificate on the production of a SSN by at least one parent. Unfortunately, here again, CIS didn't check its facts. Requiring a diplomat to produce a SSN is little barrier to the issuance of a birth certificate because diplomats can easily obtain SSNs. If diplomats in the U.S. on diplomatic visas can get SSNs, how would requiring SSNs before issuing birth certificates solve any "problem" with giving birth certificates to diplomats' children?

Ms. Stock doesn't see the full picture. If all parents were required to put their SSNs on birth certificate request forms – currently, it is optional – then federal agencies could easily cross-check these numbers with any numbers they've granted to foreign diplomats before granting a SSN to a newborn; the SSA could also direct the states to issue a special birth certificate that specifically denotes "Not a U.S. Citizen" for these individuals. As a top official at the SSA explained to me, the agency knows that children born to foreign diplomats should not be automatically receiving SSNs at birth, they know that it is happening, but they haven't been tasked by Congress to come up with a system to prevent such issuance. Making parents put their SSNs on the forms would be a step towards a more accurate system. Of course, most parents who are in the country illegally would not have a SSN, nor would they be able to obtain one, and that means a blank form could suggest that a parent is in the country illegally. This would allow the government the opportunity to deny automatic citizenship to a child born to an illegal alien, perhaps by issuing a birth certificate that denotes the child was not born subject to the jurisdiction of the United States – exactly the type of document that should be issued to children born to foreign diplomats. Obviously, immigration attorneys who want to abolish the concept of "illegal immigration" see this as problematic, even though it is unclear the Constitution requires children born to illegal aliens be granted birthright citizenship. This might be the real reason Stock is uninterested in perusing this issue: A better-regulated birth certificate and SSN issuance process would give future administrations the ability to put an end to automatic birthright citizenship for children of illegal aliens.

Stock continues:

CIS's second flawed recommendation is requiring millions of people who have babies in the United States every year to declare their "profession" on their child's birth certificate on the theory that anyone who writes "diplomat" will have her baby flagged for special scrutiny. This recommendation is based on the assumption that the children of foreign diplomats, once identified, can be readily denied citizenship simply based on a declaration of the parent's profession. However, the 14th Amendment's limiting language – "subject to the jurisdiction" – excludes from birthright citizenship only the small number of babies born in the U.S. to two parents who are immune to the enforcement of U.S. civil and criminal laws – not all persons who might identify themselves as diplomats. The CIS report also fails to mention that not all foreign diplomats and diplomatic staff in the U.S. have diplomatic immunity. In fact, only a small number are afforded this special status.

As I point out in the report, asking for a parent's profession – though perhaps a logical inquiry – would not solve the problem. I explain that although a number of states do inquire about parental occupations, it is anticipated that the occupation line may be left blank, as some parents are unemployed. Furthermore, a diplomat could leave the line blank (intentionally, or accidentally) and easily overcome such an inquiry. Nevertheless, putting "special scrutiny" on children born to foreign diplomats certainly seems legitimate if we all agree that children born to foreign diplomats should not be receiving U.S. citizenship (or documents that suggest U.S. citizenship and may lead to benefits reserved for citizens). It's very odd that Ms. Stock has no interest in scrutinizing citizenship procedures that may run afoul of the 14th Amendment's Citizenship Clause.

Does my report "fail to mention that not all foreign diplomats and diplomatic staff in the U.S. have diplomatic immunity"? It wasn't mentioned because the report was about diplomats who do have diplomatic immunity. Ms. Stock has difficulty with this issue because she assumes that being "subject to the jurisdiction" of the United States – the constitutional requirement to obtaining U.S. citizenship by birth – means being "subject to police power," a highly questionable interpretation of the 14th Amendment and one that Congress should question. There's an argument to be made that neither children born to diplomats, nor children born to non-citizen consulate staffers, temporary aliens, or illegal aliens should be considered as being "subject to the jurisdiction" of the United States since the parents hold foreign allegiance and are not completely within the jurisdiction of the United States. An analysis of this matter as it relates to illegal and temporary aliens was in an earlier paper; the issue of consulate staffers deserves its own lengthy analysis.

Stock continues:

Yet a third whopper is the CIS report's erroneous statement that the 14th Amendment's limiting language has little practical effect. Although there are very few children born in the U.S. to the foreign diplomats who hold diplomatic immunity, the 14th Amendment's language has a very serious practical effect for each of them – they cannot obtain U.S. passports – a fact that prevents them from traveling internationally as U.S. citizens. Had the report's author checked with an immigration lawyer, he would have learned that the U.S. State Department keeps a list of diplomats who have immunity, and should one of their children apply for a U.S. passport, the State Department will deny the passport application on the grounds that the child is not a U.S. citizen. Yes, the child will have a U.S. birth certificate – but the child's birth certificate is not proof of U.S. citizenship, merely proof that the child was born in the United States. Far from being the "super citizens" that CIS fears, these children are not U.S. citizens at all. . . .

Interestingly, the CIS report makes much ado about the fact that the Social Security Administration isn't tracking foreign diplomats and their children – but fails to mention that there is already a Congressionally-mandated government office specifically tasked with keeping track of them – the Office of Foreign Missions (OFM). Among other things, OFM gives tax-exempt cards and special driver's licenses to those diplomats who have immunity – and arranges for them to get SSNs. OFM also helps their children apply for green cards, which is why the "problem" in the CIS report is close to non-existent. Inexplicably, however, CIS fails to mention the existence of OFM in its report, or the small number of children born in the U.S. each year to two diplomats who hold immunity.

Clearly, Ms. Stock didn't read my report too closely, nor has she done her research. I explained in the report that the State Department keeps a list of diplomats with immunity. The question, however, is whether any agency keeps a list of the children born to these diplomats. In fact, I did speak with a number of attorneys and other officials at the State Department (in a number of offices), and they explained that they do not keep track of children born to foreign diplomats.

As for the Office of Foreign Missions, the official there explained that his office has not been tasked with maintaining a database of children born to foreign diplomats. The official explained that there are data sets that may contain the names of children born to foreign diplomats on U.S. soil, but that it would be completely dependent on the parent alerting the State Department's Office of Protocol to the fact that the diplomat had a child. The OFM official explained, "We all share the same data system, but we [the OFM] don't input that data and we don't directly have authority over that issue." Perhaps Ms. Stock can point to a congressional mandate, but my continuing concern is that federal agencies are inconsistent on this issue and additional direction from Congress would be helpful.

I also spoke with the Office of Protocol, which seemed to have the most information on the subject (an office to which I was directed a number of times), and officials there explained that a list of children born to foreign diplomats would be "impossible to compile." I pressed again, asking whether there was any kind of list maintained by that office. The official's response:

"No, no, no. We don't keep a list. What we do is register any employee working at an embassy or consulate… But when it comes to dependents, like in this case when the children are born here, we send a memo to the Office of American Citizen Services, they follow up with our case, they are the ones who make the determinations."

I asked, "I guess it also depends whether or not the foreign diplomat even alerts you to them having a child, right?"

The official's response: "Exactly."

I then called the Office of American Citizen Services, which directed me to a section of their department called the Office of Overseas Citizenship. That office was surprised that the inquiry had been directed to them and felt that it was the Protocol Office that might be compiling a list of children born to foreign diplomats:

"I believe, my strong suspicion is that that is the Office of Protocol. If someone from the Office of Protocol told you that, that would be interesting."

And later:

"I have to say it would be Protocol making that list. It would not be us. I'm quite sure. If someone told you to come to us, and if I'm telling you to go to them, I wonder if there is such a list, and I'm dubious."

Multiple officials in this office shared the same sentiment. From my research, it does not seem that any government agency is keeping track of children born to foreign diplomats.

As to passports, they are only one benefit of being a U.S. citizen. Another example is being able to acquire a government job reserved only for U.S. citizens. I spoke with the Office of Personnel Management (OPM) which oversees employment for government jobs requiring U.S. citizenship. In an e-mail, the agency explained, "OPM does not utilize the Department of State for verification of U.S. citizenship for persons born in the United States." The problem, of course, is that some people born in the United States are not to be considered U.S. citizens – children born to foreign diplomats (if not others), and the State Department seems to be the only agency capable of even beginning to keep track. Since children born to foreign diplomats have U.S. birth certificates and validly-issued SSNs, they do not raise any red flags for the OPM, even though they certainly should. If the children were issued birth certificates that read, "Not Evidence of U.S. Citizenship" and if they were not automatically granted SSNs, they would not be able to acquire a job reserved for U.S. citizens as easily as they may be able to do so today. Since the U.S. is granting documents that give the appearance of U.S. citizenship to anyone and everyone at birth, the only option for OPM (and underlying agencies seeking employees) at this point would be to run the names of all job applicants through the State Department before clearing a person as an authorized U.S. citizen. Of course, this would be a significant undertaking, and it would depend on the State Department having a complete list of all children born to foreign diplomats – something that does not appear to be happening. Multiple officials at the State Department explained that they have never heard of the OPM coming to their agency for vetting purposes. Stopping such careless issuance of documents at the outset might be the best way to make sure non-citizens are not acquiring jobs that require U.S. citizenship.

As to birth certificates, although Ms. Stock feels that a child's birth certificate "is not proof of U.S. citizenship," had she checked with the USCIS, she would have learned that the agency does consider a U.S. birth certificate proof of U.S. citizenship. And therein lies the problem. Federal agencies involved with the citizenship process are not on the same page and give different opinions as to how U.S. citizenship can be obtained, whether diplomat children are entitled to birth certificates and SSNs, and whether these documents represent U.S. citizenship or not.

At the end of the day, the 14th Amendment's bar of U.S. citizenship is really not much of a bar at all, even when it comes to the one group of people everyone agrees should not be considered U.S. citizens at birth. Ms. Stock hasn't done the research, and consequently fails to understand the issue.

Stock's article continues:

The CIS report dismissively notes that these children are entitled to apply for U.S. green cards and scoffs at the idea that they would apply for them, and yet such children apply for green cards regularly, which is why USCIS has instructions for them on its website. In fact, thirteen of them got green cards in Fiscal Year 2010. And along with their green cards, they can obtain U.S. SSNs. Moreover, most of them don't want U.S. citizenship – for a child of a member of the elite corps of foreign diplomats who have immunity from U.S. law, U.S. citizenship holds significant disadvantages. For example, U.S. citizens are subject to worldwide, lifetime U.S. taxes, Selective Service laws and potential U.S. military obligations, and worldwide, lifetime U.S. civil and criminal jurisdiction, among other things.

Ms. Stock unwittingly illustrates the precise problem here. These are individuals who have a U.S. birth certificate and SSN and can therefore enjoy nearly all of the benefits of U.S. citizenship, but simultaneously can avoid many of the burdens (e.g., Selective Service registration). They have the paperwork necessary to provide them the benefits of U.S. citizenship, but they remain partially outside the system (e.g., can invoke diplomatic immunity), making them "super citizens" who are above the law. Stock explains that these children can apply for green cards and obtain SSNs through that process. But they don't need to obtain a SSN through the green card application process – they were already issued one at birth!

Not only this, USCIS considers children born to foreign diplomats to be Legal Permanent Residents (LPR) at birth, though that was not always the case (8 § C.F.R. 1101.3). A couple of unpublished, decades-old court decisions made this so, and it is a questionable grant, not just because it raises plenary power issues (i.e. the right of the political branches to set immigration policy), but also because it seems to go against the intent of the 14th Amendment. Prior to these decisions, the government considered these children non-immigrants. The point is that if you are automatically an LPR at birth, you don't really need to apply for LPR status (i.e. a green card). Furthermore, an LPR becomes eligible for naturalization after five years. Again, why would a child apply for a green card when he's on his way to becoming a full-fledged U.S. citizen?

It's somewhat odd to hear Ms. Stock refer to U.S. citizenship as creating "disadvantages" when tens of millions of people around the globe are trying to come here. The perspective on U.S. citizenship likely varies depending on where the diplomat is from. Diplomats from problematic, conflict-ridden, third-world countries certainly would find it appealing to acquire U.S. citizenship for their children. They also know that even though their own diplomatic status will one day end, having a U.S. citizen child means that they can one day use his status as a means towards their own legal residency in the United States as a result of chain migration.

The fact that a child born in the United States who is not considered a U.S. citizen by birth under the 14th Amendment can nonetheless immediately acquire permanent residency and then naturalize suggests that our Citizenship Clause really isn't much of a bar to U.S. citizenship at all. Was it really the intent of Congress and the states which ratified the 14th Amendment that birthright citizenship operate only to delay grants of citizenship by five years to children born to foreign diplomats? Birth on U.S. soil by a diplomat parent is now clearly a pathway to citizenship for both the child and the child's parent.

Stock continues:

But again, the fact that these diplomats and their children may have SSNs does not mean that they are U.S. citizens. The children of diplomats with diplomatic immunity get SSNs not because they are U.S. citizens, but because they are entitled to SSNs under the laws and regulations relating to the issuance of SSNs.

A high-ranking official at the Social Security Administration explained to me that these children are not entitled to SSNs, and in fact, he explained that in years' past, the SSA discussed methodologies for preventing such issuance. Again, this is likely an issue of different agencies working from different perspectives as to what the Constitution requires and as to what identity documents represent. The point of my report is that Congress needs to provide some clarification so that we don't have different agencies providing conflicting information on a matter as significant as U.S. citizenship.

Stock continues:

Yet, as any immigration lawyer who has handled cases involving diplomats and their children can tell you, the 14th Amendment does indeed have a practical effect for the children of diplomats who claim immunity from U.S. laws, small as their numbers may be. These children are not birthright U.S. citizens, and the government agencies with authority to determine citizenship – the Department of State and the Department of Homeland Security – do not recognize them as such.

The Citizenship Clause can have an effect in a legal proceeding where the child has violated a law and is seeking to invoke his diplomatic immunity; i.e. after it has already been admitted that these are children of foreign diplomats. But in the ordinary course of business, many agencies at the local, state, and federal level (including the OPM, as discussed earlier) would have no way of determining and, in fact, no reason to investigate, whether a person with a validly-issued U.S. birth certificate and SSN is a child born to a foreign diplomat. Because citizenship is presumed with such documents, and no vetting system would catch such situations, better regulation seems necessary. The bigger issue is whether the limiting language in the Citizenship Clause has a practical effect in limiting the diplomat's child from acquiring certain benefits of U.S. citizenship, as was originally intended. For reasons laid out, the child seems to be able to take advantage of benefits reserved for U.S. citizens while simultaneously invoke immunity from U.S. prosecution. That is why one might consider them "super citizens."

Stock continues:

The CIS report erroneously concludes that "Congress could require parents to have SSNs before a U.S. birth certificate or SSN is issued to a newborn. While this latter proposal might create better results and be more easily administered, it would have the effect of ending automatic birthright citizenship not just for children of diplomats, but also for children of illegal aliens and temporary aliens – an outcome that is more aligned with the intended scope of the 14th Amendment than the outcome created by current practices." In fact, such a mandate would do no such thing – the children of SSN-lacking parents would still be U.S. citizens, because the 14th Amendment's grant of citizenship does not depend on whether parents have a SSN. Even without SSNs or birth certificates, the children would still be Constitutional citizens – and would easily win an Equal Protection lawsuit in Federal court.

Stock makes a lot of assumptions here, and there are many people who relish the idea of bringing this matter into court. Never has the Supreme Court ruled that children born to foreign diplomats are U.S. citizens. Never has the Supreme Court ruled that children born to illegal aliens are U.S. citizens. Simply because a child is born on U.S. soil, it does not follow that the child should automatically be considered a U.S. citizen. Most agree this is true on the issue of children born to foreign diplomats; some feel this is the case with children born to illegal aliens and temporary aliens. The problem, though, is that all of these children are receiving the same documents. On paper, there is not any differentiation whether the child is born to diplomats or illegal aliens. Obviously, whether or not a parent has a SSN is only the beginning of an analysis that the government could conduct in determining whether a child born to such parents should be considered a U.S. citizen. As discussed earlier, the SSA could simply review its records and determine whether a parent's SSN was issued because the parent is a citizen or because the parent is a temporary alien who applied for an SSN. I suggested a requirement of parental SSNs, rather than just parental names, because name-based systems are notoriously problematic. We can debate what the outcome should be in each instance, but since the data isn't being compiled and the documents are not nearly as regulated as they should be, it seems that the administrative process is driving citizenship policy when it should be the other way around.

Stock continues:

CIS's prescription for change – that millions of parents of US-born babies be required to answer more questions and provide Social Security numbers, and that states be required to issue two different types of birth certificates – would be very expensive to administer, adding thousands of government bureaucrat jobs to the taxpayers' burden at a time when the U.S. is facing the country's worst budget crisis ever. Creating yet more red tape for millions of newborns is not a fiscally responsible move – and would do nothing to identify the dozen babies born in the U.S. to immunized diplomats every year, who are already tracked by the Office of Foreign Missions.

Despite the hyperbole, the regulation could be quite simple. Already, the federal agency tasked with creating a standard birth certificate meets regularly to update the forms and procedures. If Congress so directed, the agency could make this discussion part of their next meeting. The standard forms already inquire about parental SSNs, though filling it out is currently optional. Adding language to the form that the number is mandatory would not only be simple, it would begin to get at the matter of issuance to children who are not U.S. citizens under the 14th Amendment. Though Stock claims this would "do nothing," the reality is that the SSA could cross-check the numbers against their databases to determine whether the numbers were assigned to parents constitutionally incapable of giving birth to a U.S. citizen. If immigration attorneys put their heads together, I'm certain they could come up with a fiscally-responsible and efficient process. Of course, if immigration attorneys were fiscally responsible, they wouldn't be constantly pushing for immigration policies and non-enforcement schemes that have the effect of increasing the number of low-wage workers in the United States with limited skill sets and no high school degrees, i.e. a population that has the effect of stagnating wages and increasing demands for government subsidies. An immigration attorney writing about fiscal responsibility is quite a humorous thing.

Stock concludes:

But this latest report by CIS does illustrate why it's a bad idea for state and local governments and U.S. hospitals to get into the business of verifying the immigration and citizenship status of the parents of every child born in America – if a "think tank" like the Center for Immigration Studies can't get the facts and law right, how can state and local governments be expected to do so?

As for her quip about my organization, it seems misplaced considering Ms. Stock used my research on birthright citizenship earlier this year at the 27th Annual Fordham Debate at the University of Utah's College of Law – specifically, a global map indicating how other countries deal with the issue, which took months of research to produce. Of course, the Center for Immigration Studies is one of the few immigration-focused groups that produces original research, rather than just opinions, and we're happy to have others spread our findings.

In sum, Ms. Stock's prescription is to do nothing. She wants the states to continue issuing birth certificates to anyone and everyone who requests one, she wants the SSA to continue issuing SSNs automatically to people who are not entitled to them, and she doesn't seem interested in protecting the value of U.S. citizenship (which is evidenced not only by her position on birthright citizenship, but also her support for mass amnesty). At the same time she and other immigration attorneys are constantly pushing to lower the requirements for obtaining U.S. citizenship. This is why one must conclude that the limiting language in the Citizenship Clause is being quietly dissolved.