Post by Randall Ryder
As part of a growing discussion regarding immigration reform, many Republican leaders are calling for reform or even repealing the 14th Amendment. The 14th Amendment grants citizenship to any person born or naturalized in the United States.
In particular, many leaders oppose allowing children of illegal immigrants to automatically receive US citizenship. Some leaders are calling for a repeal of the Amendment, while others merely want to modify it. Other Senators are considering introducing legislation in the form of a statute.
Amending the Constitution is not an easy task. Amendments must first be proposed and then ratified by the states. To propose an amendment, the proposal must receive a two-thirds vote by both the Senate and House of Representatives. Alternatively, if two-thirds of state legislatures demand an amendment, a constitutional convention must be held. If an amendment is successfully propose, it must be ratified by three-fourths of the states.
Garnering the votes to even propose the amendment is difficult, if not impossible. In addition, the partisan attitude of today’s political climate makes it extremely unlikely. Even if the proposal was successful, it seems highly unlikely that 75% of the states would agree to an amendment that drastically changes the road to citizenship. Members of the Obama administration have already claimed that any such attempt is purely political and an attempt to get votes in an election year.
Even if there was a groundswell of support for changing the 14th amendment, how would the text be modified? As currently written, the text is quite clear and open to little interpretation. Changing the text could make it difficult to enforce and open to interpretation in the future. More importantly, as already noted, getting enough votes to support a textual change is likely impossible.
An alternative is a statute that addresses the issue, which would have a lower vote threshold. Again, however, the issue is so contentious right now that garnering the votes could be difficult. In addition, any statute that is enacted could be challenged on Constitutional grounds. The likelihood of that type of challenge would depend on what the text of the statute says. At the same time, the recent Arizona law and Proposition 8 in California have both been successfully challenged at this point, seemingly making future challenges likely. The immigration debate is a hot topic right now, but changing the Constitution as a result seems highly unlikely.