Thread: A Conservative Amnesty: A Proposal That Will End Illegal Immigration

A Conservative Amnesty: A Proposal That Will End Illegal Immigration


By Richard Kelsey December 3, 2014

Immigration Reform




Just the word amnesty fires me up. The thought of rewarding criminal behavior is abhorrent to me. When light-weight, pro-amnesty politicians hump “comprehensive immigration reform,” they are talking about amnesty. I have been in the fight against illegal immigration for more than two decades. I grew up in a small New Jersey town over-run by illegal aliens. I saw town officials take advice from federal authorities to create better conditions for those who came here illegally. Over 20 years ago, I coined the term “illegal invaders” in an op-ed. I have been called a racist too many times to count, all because I think it is wrong to both promote and reward illegal immigration. No matter what I write on my appreciation and support for vigorous legal immigration, the open boarders’ lobby has always been there to paint me as a right-wing nut or racist. In the entire sad, sorted history of the political conspiracy between the two major parties to support illegal immigration, I have never once heard – not one time – a proposal that I could support that would address the root causes of illegal immigration and eliminate them permanently. Today, I give you a proposal that will end illegal immigration. If you want real reform, that should be the goal.


Immigration reform requires setting out key principles. Here are mine. Immigration policy is for the citizens, not for the immigrants. This is our house, and we decide who gets to visit and who gets to stay. We make value judgments because we can and because we should. Any immigration reform that rewards illegal immigration and does not destroy the incentives for more illegal immigration is a dead letter to me and most Americans. What is the point in fixing this problem only to make it worse and to encourage illegal aliens to enter and stay here again, waiting for the next amnesty? The game must end here, and to do that we must eliminate the incentives and rewards for coming here illegally. If you do that, you won’t need a fence. The only purpose a fence serves is to slow down invaders and to help law enforcement. A fence will not stop people in poor countries who know that once here they will be given medical care, a free K-12 education, and all of their off-spring will be Americans. And, if they wait long enough, these fence-jumpers to the American dream will ultimately get some form of amnesty. See what Reagan, Bush, and Obama have done. We must have immigration reform principles that start by eliminating perverse incentives and rewarding illegal behavior. Only after that is done, can we address the problem of those here illegally.


My immigration reform starts with eliminating birth-right citizenship for people whose parents came here illegally. My immigration reform requires proof of lawful presence here to attend any school, effectively repealing Plyler v. Doe, a Supreme Court case that gives illegal aliens a Constitutional right to a public education. Those two actions alone would immediately stem the tide of illegal aliens coming to the United States. The third requirement would be that anyone found in the US illegally after the reform period would be forever banned from obtaining citizenship, the right to work, or even a visa to visit the US. Finally, my immigration reform would make it illegal, subject to criminal penalties, for any state or locality to offer sanctuary programs or incentives to illegal aliens. If a violation is found, that state or locality would lose all federal funding for the year of the violation. Now, you have immigration reforms that give no incentive to illegal aliens to come illegally and no avenue for open borders’ sympathizers to assist them in coming.


Once complete, we can address what to do with the 20 plus million illegal aliens in the United States. You give me the reforms I posit above, and I will sign off on a path to citizenship for those here who are not felons. However, every single one of them must register, undergo real background checks, be finger-printed, and pay a fine relative to their time here illegally. Finally, while all of them may apply for citizenship and should receive proper working papers to be here lawfully, not one of them should receive citizenship before any current pending applicant who is trying to enter this country legally. That’s an amnesty with which I can live. That will restore our laws, restore our borders, and put an end to this immoral and illegal invasion of our country. Without the first three reforms, all bills put out by any party are dead to me, and honest Americans should fight them until their party, their leadership, and their proponents are out of office. This is what real reform looks like.


The President’s illegal executive order is designed to destroy one party while gaining votes for another. My reform is designed to end illegal immigration, demand accountability for those here, and ultimately resolve the issue with all illegal aliens present. It’s the right policy for America, irrespective of party.


Richard Kelsey is an Assistant Dean at George Mason Law School. A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company. He teaches legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His Twitter handle is @richkelsey.

http://m.cnsnews.com/commentary/rich...al-immigration

I must disagree with the good professor Kelsey. His ideas were really great until he got to the amnesty thing. Then he lost my support. In my opinion the whole foundation for a real end to the mass invasion of foreigners is that all those who are in our country illegally must leave. They must be gone. If they stay, then all of the hardships they have caused become permanent. To grant them legal status is profound contradiction of any laws that may follow to control illegal immigration. Remember these people do not contribute, they take, and many have consciously exploited America’s benevolence. They are not nice people. They are not innocent. Illegal aliens have caused no end of social and economic hardships for real Americans. It violates the most basic ideas of fairness and justice to allow them to stay. We have suffered an enormously because of their presence here. Why do we even consider any amnesty for them?

More than anything else we may do, making all of those living here illegally leave the country will send a powerful message to the whole world that we are serious about protecting our national sovereignty. And that message will do more than anything else to stop illegal immigration.

The US and Canada are the only developed nations in the world to still offer Birthright Citizenship to tourists and illegal aliens

How the Fourteenth Amendment Empowers Congress to End Birthright Citizenship
by Ken Klukowski 6 Jul 2014 91 post a comment


If an illegal alien has a child on American soil, the Constitution does not require the child be granted American citizenship. Congress can give citizenship to anyone it wants, but the Fourteenth Amendment only commands citizenship to persons born on U.S. soil to parents who are not citizens of a foreign country.

Part of the chaos on America’s southern border is driven by illegal aliens seeking to have “anchor babies.” Under the current Immigration and Nationality Act (INA), if an illegal alien has a baby on U.S. soil, that baby is an American citizen.

Since all citizens have a right to be here, the illegal adult then cites the need to keep families together as justifying the parents' staying in the U.S. for the rest of their lives, and “family reunification” is cited as grounds for bringing the rest of the family to the United States.

However, Congress could change that law any time, because it goes far beyond what the Constitution commands. Section One of the Fourteenth Amendment begins, “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.”

While many erroneously claim that the Fourteenth Amendment guarantees citizenship to anyone born on American soil, the reality is that is not the law and has never been the law. Current immigration law—found at 8 U.S.C. § 1401(a)—specifies that a baby born on American soil to (1) a foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

But if the view promoted by the Left that citizenship is automatic (and parroted by many in the middle and even on the Right who have not seriously studied the issue) is correct, then those three exceptions would be unconstitutional. The debate over birthright citizenship turns on what the Citizenship Clause means by the words “and subject to the jurisdiction thereof.”

Every provision of the Constitution has a fixed meaning. Because only “We the People” can adopt a constitutional provision—all 27 amendments in the Constitution were proposed by two-thirds of the House and Senate, then ratified by three-fourths of the states—the only legitimate way to interpret the Constitution is in accordance with the original meaning of those terms.

So the question becomes: What was the meaning of the Jurisdiction Clause in 1868 when the Fourteenth Amendment was ratified? One of the best tools for determining that is looking at the Civil Rights Act of 1866, enacted the same year that the Fourteenth Amendment was written by Congress.

As anyone who has seen the award-winning (and historically accurate) movie Lincoln understands, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and unwavering resolve of Republican President Abraham Lincoln that the Great Emancipator succeeded in getting the proposed amendment through Congress and to the states for ratification.

As my coauthor Ken Blackwell and I explain in more detail in our 2011 book Resurgent, the Civil Rights Act was first enacted by citing Section Two of the Thirteenth Amendment, which authorized Congress to implement the amendment through appropriate legislation.

The Civil Rights Act included a provision to define American citizenship to secure it for former slaves. It read, “All persons born 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.”

But some supporters of racial equality were concerned that the Thirteenth Amendment didn’t authorize legislation that went beyond eliminating various aspects of slavery and even voted against the bill because they regarded it as unconstitutional. Led by one of the best constitutional lawyers in Congress, Rep. John Bingham (R-OH), they wrote what would be ratified in 1868 as the Fourteenth Amendment to the Constitution, including the Citizenship Clause and its Jurisdiction Clause.

The movie Lincoln vividly portrays the political environment in 1865, illustrating why more expansive language—such as for citizenship, due process, equal protection, or voting rights—would have doomed the Thirteenth Amendment. All those had to wait for the Fourteenth and Fifteenth Amendments.

Conventional wisdom says that the Fourteenth Amendment’s “subject to the jurisdiction thereof” excludes from citizenship those who have diplomatic immunity or who are agents of a foreign country, explaining the three exemptions in federal law (ambassadors, heads of state, and foreign soldiers).

But the Civil Rights Act’s parallel language, “and not subject to any foreign power,” instead shows the Jurisdiction Clause excludes all citizens of any foreign country. The Citizenship Clause was intended to overrule the most infamous Supreme Court case in American history—the 1857 Dred Scott case—and ensure free blacks born in America could not be denied citizenship. It was never designed to make a citizen of every child born to a foreigner.

The Supreme Court expressly took note of this originating language of the Civil Rights Act in the 1884 case Elk v. Wilkins. The Court acknowledged that Section One of the Fourteenth Amendment was condensed and rephrased from the Civil Rights Act and therefore that courts can look to that federal statute to resolve ambiguities in the meaning of the Fourteenth Amendment.

This came up again in the 1898 case U.S. v. Wong Kim Ark, when the federal government attempted to deny permanent residence to an American citizen born to two Chinese noncitizens. The Supreme Court held that the Citizenship Clause guaranteed citizenship for “all children here born of resident aliens.”

While that decision is incorrect in light of the Civil Rights Act, even Wong Kim Ark nonetheless would not secure citizenship for the children of illegal aliens. The only Supreme Court support for birthright citizenship is Plyler v. Doe, a 5-to-4 Supreme Court decision written by ultra-liberal Justice William Brennan, which claimed that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

In that case, the Supreme Court held that states were required to pay for the public school education of children of illegal aliens. Conservative and moderate justices dissented from Plyler. It was wrongly decided and poorly reasoned and should be overruled.

While some conservative lawyers believe the Fourteenth Amendment requires birthright citizenship, many conservative giants like Ronald Reagan’s Attorney General Ed Meese support the originalist interpretation of the Jurisdiction Clause part of the Citizenship Clause. Leading conservative scholars like Professor John Eastman—a former law clerk to Justice Clarence Thomas—agree.

Even some who flatly reject conservatism agree. One example is Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Although a Reagan appointee, Posner’s hallmark is making decisions in accordance with what he regards as producing good public policy outcomes, rather than strictly following the clear meaning of the words in the law.

On this topic, Posner wrote in 2003 in Ofoji v. Ashcroft:

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship…

A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…

The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.

If a constitutional conservative Republican wins the White House, and Republicans control both the House and Senate, then as part of finally dealing with immigration Congress could enact this change.

First must be a statute that effectively secures the border. A second statute should address citizenship. Then a third could be a statute creating a broad and generous guest-worker program.

Each bill would save the United States billions of dollars per year. Consequently, each could be passed in the Senate through what is called “reconciliation,” and therefore could not be filibustered and instead passed with 51 votes. With 218 House members, 50 senators (plus the vice president), and a willing president, all this could become law in 2017.

Congress could specify that children of illegal aliens are not citizens or could go more broadly to include some or all legal temporary residents. It would certainly help garner conservative votes for follow-up legislation for a broad guest worker program if federal law specified that any children born to those guest workers would not be citizens and thus not anchor babies.

Such a law would provoke a lawsuit from parents of a child who does not receive citizenship due to the new law. It is not certain how the Supreme Court would rule on this question today, especially since it may require overruling Plyler. But there is a good chance it would succeed, and given how far out of control the border is, many would argue we must try everything possible.

Ken Klukowski is senior legal analyst for Breitbart News and coauthor of Resurgent: How Constitutional Conservatism Can Save America (Simon & Schuster 2011). Follow him on Twitter @kenklukowski.

http://www.breitbart.com/Big-Governm...ht-Citizenship

Originally Posted by csarbww

I must disagree with the good professor Kelsey. His ideas were really great until he got to the amnesty thing. Then he lost my support. In my opinion the whole foundation for a real end to the mass invasion of foreigners is that all those who are in our country illegally must leave. They must be gone. If they stay, then all of the hardships they have caused become permanent. To grant them legal status is profound contradiction of any laws that may follow to control illegal immigration. Remember these people do not contribute, they take, and many have consciously exploited America’s benevolence. They are not nice people. They are not innocent. Illegal aliens have caused no end of social and economic hardships for real Americans. It violates the most basic ideas of fairness and justice to allow them to stay. We have suffered an enormously because of their presence here. Why do we even consider any amnesty for them?

More than anything else we may do, making all of those living here illegally leave the country will send a powerful message to the whole world that we are serious about protecting our national sovereignty. And that message will do more than anything else to stop illegal immigration.

I agree with every word, 100%.

Illegal aliens must depart our nation.

How the Fourteenth Amendment Empowers Congress to End Birthright Citizenship
by Ken Klukowski 6 Jul 2014 91 post a comment

This is a great article by Ken Klukowsi and absolutely spot on. There is no civil right to become a US citizen simply because you are born here. He's absolutely right about being subject to another jurisdiction as an exclusion which all children of illegal aliens are since they are born with the citizenship of their parents. He's absolutely correct that this stupid policy has no foundation in either the US Constitution, the US Bill of Rights or the US Civil Rights Act.

This insane policy just came to be by the acts of hacks working for the government who saw a birth certificate issued by a state and used that alone to confer citizenship. There is no law that guarantees or authorizes this. It's simply a USCIS policy.

And Plyler vs. Doe is one of the worst most short-sighted non-reflective decisions the US Supreme Court ever made. It was made out of compassion for the children with no study of law or Constitution since neither required states to fund the education of illegal aliens, and it was made without reflection of the consequences, because it was unforeseen by the Supreme Court that the United States Government would refuse to deport illegal aliens to resolve the problem which of course is the simple and legal solution to the burden of illegal aliens on our educational and other institutions.