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Test-marketing the "Amnesty" Issue

Republican Brian Bilbray accuses Democrat Francine Busby of supporting "amnesty" for illegal aliens. What does that mean?

May 22, 2006

Modified: May 22, 2006

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Summary

Republican House candidate Brian Bilbray is providing an early test of how the immigration issue will play with voters.

He's running a TV ad accusing his Democratic opponent in a June 6 special election of supporting "amnesty" for illegal immigrants. Actually, Democrat Francine Busby would allow illegals to remain only after paying a fine and securing a temporary worker visa.

The ad also says Busby "says children of illegal aliens get automatic citizenship." That's true, and she's right. The Fourteenth Amendment to the US Constitution also says that. Bilbray says he'd deny birthright citizenship, but fails to mention that it would probably require another Constitutional amendment

Analysis

Bilbray's ad, financed by the National Republican Congressional Committee, began airing May 15. 

NRCC/Bilbray Ad: "One Clear Choice"

Announcer: Two candidates for Congress, one clear choice. 
(On Screen: A picture of Busby and a picture of Bilbray)
Brian Bilbray opposes amnesty for illegal immigrants.  Francine Busby supports amnesty.  Her plan allows eleven million illegal aliens to stay here and adds up to thirty million in ten years.  Francine Busby says children of illegal aliens get automatic citizenship.  Brian Bilbray wrote the first bill to stop automatic citizenship.
(On Screen: Footage of Bilbray sitting at a desk.)
Bilbray: I’m Brian Bilbray and I approve this message.  I’m running for Congress because San Diego and America cannot wait another day to secure our borders.
(On Screen: Footage of Bilbray standing next to a door.)

What's "Amnesty?"

Bilbray's ad says he opposes “amnesty” for illegal immigrants while Busby supports it. However, Busby’s campaign website says she opposes “amnesty.” So what's going on?

In fact, Busby publicly supports a 2005 bipartisan immigration bill co-sponsored by Republican Sen. John McCain of Arizona and Democratic Sen. Edward M. Kennedy of Massachusetts. That bill (S 1033) would allow people who are in the United States illegally to apply for a temporary worker visa after paying a $1,000 fine. Eventually they could gain permanent residence status after paying another $1,000 fine and working in the United States for six years under the temporary visa. They also would need to prove they were learning English and submit to a background check.

Bilbray, on the other hand, supports the Republican immigration bill (HR 4437passed by the House on Dec 16, 2005. The bill would make it a felony to enter or live in the United States illegally – punishable by a year and one day in prison. Its terms would require the deportation or imprisonment of the estimated 11 million illegal immigrants currently in the US.

Busby's position is thus much more favorable to illegal immigrants than Bilbray's, but whether it amounts to "amnesty" or not is a matter of interpretation. The Oxford English dictionary defines amnesty as, “An act of oblivion, a general overlooking or pardon of past offences, by the ruling authority.”

Busby defines amnesty as “granting automatic citizenship to all those here illegally without any recognition that laws have been broken,” according to a campaign spokesman. Bilbray defines amnesty as being, “When the government allows a large group of lawbreakers to escape the consequences [of] their actions and the punishments prescribed by law,” according to a spokesman. Take your pick.

Automatic Citizenship

The ad says, "Francine Busby says children of illegal aliens get automatic citizenship." Actually, that's what the Fourteenth Amendment of the United States Constitution says:

Fourteenth Amendment: 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.

Bilbray's ad also says that "Brian Bilbray wrote the first bill to stop automatic citizenship." It is true that he sponsored such a bill (HR 1363 ) in 1995 when he was a member of Congress from a neighboring district. However, there is considerable doubt that any measure like Bilbray's would hold up in court. Many legal experts say it would require another Constitutional amendment to end birthright citizenship. According to the non-partisan Congressional Research Service (CRS), the Fourteenth Amendment’s intent is clear:

CRS: Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents.

Bilbray's measure would have defined "subject to the jurisdiction" of the U.S. to exclude anyone born to non-citizens or non-permanent residents. However, the US Supreme Court spoke to that in the case of U.S.  vs. Wong Kim Ark in 1898. The high court rejected the argument that a child born in the U.S. to Chinese parents wasn't "subject to the jurisdiction" of the United States because the parents owed allegiance to a foreign emperor.  It said that the words "not subject to the jurisdiction" of the US applied only to children born to parents who were foreign diplomats, or to parents in hostile military occupation of US territory.

The court also declared:

US Supreme Court: The fourteenth amendment . . . has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.

The ad stretches the truth when it says Bilbray wrote "the first" bill to deny birthright citizenship.  In 1991 Republican Representative Elton Gallegly of California sponsored a bill (H.J.Res 357 ) to amend the Constitution and restrict citizenship by birth to children with legal resident mothers. Bills similar to Bilbray's – attempting to end birthright citizenship without amending the Constitution – have been introduced more recently by Rep. Nathan Deal of Georgia. None have made it to the House floor.

30 Million Illegal Immigrants in 10 Years?

Bilbray's ad also claims Busby’s plan "allows 11 million illegal aliens to stay here and adds up to thirty million in ten years.” It is true that the plan supported by Busby would allow the estimated 11 million illegal immigrants to remain, provided they pay their fines and meet other conditions. How many additional immigrants might come here is a matter of some uncertainty and debate.

As support for the 30 million figure, Bilbray's ad cites a March 29 Senate floor statement made by Republican Senator Jeff Sessions of Alabama.  At the time, Sessions was talking about the bipartisan immigration reform bill (S 2611) that passed through the Senate Judiciary committee two days earlier:

Sessions: We think, conservatively speaking, this bill would add 30 million people to our Nation in the next 10 years.

According to Sessions' legal council, Bradley Hayes, the estimate was generated by Sessions's personal staff.

Since then, even larger estimates  have been issued by the Heritage Foundation, a conservative Washington think tank. A report written by Robert Rector of Heritage said the Senate bill would quintuple the rate of legal immigration and allow "an estimated 103 million persons to legally immigrate to the U.S. over the next 20 years." After the Senate voted to reduce the number of temporary worker visas Rector reduced that estimate to 66 million over the next two decades.

-by Emi Kolawole and Brooks Jackson

Sources

Fears, Darryl.  “Immigration Measure Introduced,” The Washington Post.  13 May 2005.

Mikyung Lee, Margaret.  “U.S.  Citizenship of Persons Born in the United States to Alien Parents,” The Congressional Research Service.   Report No. RL33079 .  13 Sept 2005.

"Senator Specter Speaks on the Senate Floor Regarding Immigration Reform,"   News Release .  27 March 2006.

United States  House of Representatives.   H.J.Res. 129. 103rd Congress.

United States  House of Representatives.  H.J.Res. 357.  102nd Congress.

United States  House of Representatives.  H.R. 1363.  105th Congress.

United States  House of Representatives.  HR 4437.   109th Congress. 

United States  Senate.  S. 2611.  109th Congress.

United States  Senate.  S. 1033.  109th Congress.

U.S.   Const. Amend. XIV, § 1.

U.S. v. Wong Kim Ark.  169 U.S. 649. 28 March 1898.