[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4864 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 4864
To amend the Immigration and Nationality Act to clarify the application
of birthright citizenship, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 25, 2023
Mr. Gaetz (for himself, Mr. Gosar, Mr. Santos, and Mr. Biggs)
introduced the following bill; which was referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to clarify the application
of birthright citizenship, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``End Birthright Citizenship Fraud Act
of 2023''.
SEC. 2. PURPOSE.
The purpose of this Act is to recognize the principle of limited
jus soli conveyed in the 14th Amendment and codified in the Immigration
and Nationality Act through the statement, ``subject to the
jurisdiction thereof'', and reform United States immigration law to be
consistent with the statement's original meaning by denying automatic
citizenship at birth to children born in the United States to parents
who are not United States nationals, aliens lawfully admitted to the
United States as refugees, aliens lawfully admitted for permanent
residence, or aliens performing active service in the United States
Armed Forces.
SEC. 3. FINDINGS.
Congress finds the following:
(1) Naturalization is an exclusive power of Congress, as
stated in article I, section 8, clause 4 of the Constitution,
``The Congress should have power . . . To establish an uniform
Rule of Naturalization . . .''.
(2) The phrase ``subject to the jurisdiction thereof'' as
stated in the Immigration and Nationality Act, references the
same statement found in section 1 of the 14th Amendment, and
carries the same meaning.
(3) The phrase ``subject to the jurisdiction thereof'' is a
legal term of art, derived from concepts related to a limited
jus soli, and understood by the drafters of the 14th Amendment
to have its basis in English common law, which in turn has its
basis in Roman law.
(4) Bartolus de Saxoferrato, a 14th-century Italian and one
of the first legal scholars to study the Roman concept of the
acquisition of citizenship, civilitas civilatis, as deduced
from the Corpus Juris Civilis, determined that a Roman citizen
by birth, civis ab origine, was one who had been born within
the territory of the state and to at least one parent who was
already a citizen of the state.
(5) In the earliest known case to articulate jus soli in
England, Calvin v. Smith (Calvin's Case), it was agreed that
the statuses of ``subject'' and ``alien'' were determined by
whether a person was born owing allegiance to the sovereign, as
indicated by the Latin phrase ad fidem regis.
(6) Sir Edward Coke, one of the judges deciding Calvin's
Case, extrapolated one exception to jus soli, writing, ``But if
enemies should come into any of the King's dominions, and
surprise any castle or fort, and possess the same by hostility,
and have issue there, that issue is no subject to the King,
though he be born within his dominions, for that he was not
born under the King's ligeance or obedience. But the time of
his birth us of the essence of a subject born; for he cannot be
a subject to the King of England, unless at the time of his
birth he was under the ligeance and obedience of the King.''.
(7) Whether a person at birth is under the ligeance and
obedience to the sovereign is not determined by whether his
foreign parent is subject to the territorial jurisdiction of
prosecution, as any foreign enemy, marauder or bandit, would be
subject to the law of the land when captured, but, instead,
whether his parent is present in the territory lawfully and
permanently, not only voluntarily availing himself to the
jurisdiction thereof, but doing so with the consent of the
sovereign.
(8) Senator Howard, when proposing language to be included
in the 14th Amendment and making reference to English common
law exceptions, clarified his intent that citizenship should
not be conveyed to everyone born or present in the United
States, when he stated, ``This will not, of course, include
persons born in the United States who are foreigners, aliens,
who belong to the families of ambassadors or foreign ministers
accredited to the Government of the United States, but will
include every other class of persons''.
(9) Senator Lyman Trumbull, a key figure in the adoption of
the 14th Amendment, said that ``subject to the jurisdiction''
of the United States meant not owing allegiance to any other
country.
(10) Owing allegiance to the United States and being
subject to its complete jurisdiction means being ``not subject
to any foreign power'' and excludes those only temporarily
present in the country whether lawfully or unlawfully.
(11) The 14th Amendment's framers intended to give
citizenship only to those who owed their allegiance to the
United States and were subject to its complete jurisdiction,
primarily the newly freed slaves, who were lawful permanent
residents.
(12) The 1866 Civil Rights Act further clarified that the
14th Amendment did not apply to temporary visitors or those who
remained the citizen or subject of a parent's home country when
it stated, ``All persons born or naturalized in the United
States, and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the United
States.''.
(13) American Indians and their children did not become
citizens until Congress passed the Indian Citizenship Act of
1924, which would have been redundant if the 14th Amendment
extended citizenship to every person born in the United States,
no matter what the circumstances of their birth or parentage.
(14) Since the inception of the 14th Amendment, the Supreme
Court has never interpreted the 14th Amendment to extend
birthright citizenship to the children of any class of
individuals who are not citizens themselves, or lawful
permanent residents.
(15) Congressional intent and understanding of its ability
to legislate naturalization within the original public meaning
of the 14th Amendment is clear and apparent as evidenced by
legislation.
(16) The current concept of unqualified birthright
citizenship is inconsistent with the history and meaning of the
14th Amendment and has been granted far too broadly in recent
decades, enabling fraud and civilizational altering levels of
immigration spurred by persons who have illegally crossed our
borders to obtain citizenship for their children under the
misinterpretation of the 14th Amendment.
(17) The United States is one of two developed nations that
currently grants automatic citizenship so expansively to
children born within its borders.
(18) Unqualified birthright citizenship provides a strong
incentive for illegal immigrants to cross the southern border
of the United States. When their child is born on United States
soil, the family can return to their home country, and 21 years
later, the family may return as a part of chain migration not
subject to the numerical limitations by which we control most
international migration.
(19) Illegal immigrants who crossed into the United States
to give birth, often return to Mexico, sending their children
across the border daily to attend American public schools,
crowding out American students and taking advantage of American
tax dollars.
(20) Apprehensions of persons attempting to enter the
United States illegally at the southern border of the United
States surpassed 2,300,000 in fiscal year 2022 and has been
increasing exponentially since 2020, and steadily since 1980.
(21) Millions of illegal immigrants have at least one child
who is deemed a citizen under the erroneous interpretation of
the 14th Amendment. Estimates show that most children of
unauthorized immigrants are citizens by birth, and the number
has been increasing exponentially since 2003.
(22) Unqualified birthright citizenship has enabled an
entire black market. Estimates show that birth tourism results
in 33,000 births to women on tourist visas annually, and
hundreds of thousands more are born to mothers who are illegal
aliens or present on temporary visas, many of whom have
misrepresented the purpose of their trip to avoid scrutiny.
(23) The birth tourism industry is rampant in the United
States territories, with more annual births to foreign visitors
than native residents in the Commonwealth of the Northern
Marianas Islands.
(24) The Government Accountability Office has found the
fiscal impact of providing public benefits to illegal aliens,
noting that--
(A) illegal aliens and their United States children
are eligible to receive emergency Medicaid services,
primary and secondary education, school nutrition
services, Aid to Families with Dependent Children
(AFDC), and food stamp benefits;
(B) cost data are not readily available because
illegal aliens are not required to reveal their
eligibility to receive certain benefits, and officials
are often prohibited from inquiring about the status of
illegal aliens;
(C) the total costs of providing benefits to
illegal aliens is unknown due to Federal and State cost
data limitations;
(D) the estimated cost of providing AFDC benefits
to children of illegal aliens was $479,000,000 for
1992;
(E) of the 5 States that account for about 80
percent of the illegal immigrant population, California
provided the most benefits totaling $2,900,000,000;
(F) the cost of providing benefits to illegal
aliens is expected to increase some program costs; and
(G) the complete fiscal impact of providing
benefits to illegal aliens cannot be determined, since
government revenues attributable to illegal aliens are
unknown.
SEC. 4. CLARIFICATION OF BIRTHRIGHT CITIZENSHIP.
Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)
is amended by adding at the end the following:
``(j) For purposes of section 301(a), the term `subject to the
jurisdiction thereof' means, with respect to a person born in the
United States, that the person was born to a parent who is, at the time
of the person's birth--
``(1) a national of the United States;
``(2) a refugee;
``(3) an alien lawfully admitted for permanent residence;
or
``(4) an alien performing active service in the armed
forces (as defined in section 101 of title 10, United States
Code).''.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall apply to persons born on or
after the date of the enactment of this Act.
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