San Diego activist Ted Hilton has spent much of his life advocating against illegal immigration. Professionally he’s a custom home-builder, but on the side he has studied constitutional law and pushed local and state policy-makers to draft legislation aimed at restricting government benefits for undocumented migrants.
He’s currently collecting signatures to place a controversial initiative he authored on the statewide ballot for the June 2010 election. It would ban public benefits, including pre-natal and non-emergency medical care, for all undocumented immigrants and eliminate welfare payments for their U.S.-born children. It would also amend state birth certificate policy by requiring that the words “foreign parent” be included on the certificates of children whose parents can’t prove legal residence.
The cost-saving initiative, Hilton said, couldn’t be timelier as the state teeters on the brink of insolvency.
We sat down with Hilton to ask about the controversial initiative, his motivation for writing it, and why he thinks it’s justified. He jumped into the conversation before we could ask a question.
Hilton: I want to say that when I was a political science major in college, I had an opportunity to visit Chile. … I went there, traveled from Tijuana to Guatemala, and then Costa Rica into Panama by land, and came back and asked to be transferred to the Latin American Studies department, and they didn’t have one. But they said we have the Mexican-American/Chicano Studies Department, and I said, “What’s Chicano?”
But I went. That’s a part of my background. I’ve researched, studied, tutored, taught, advocated for, polled this population, learned a lot about Latin America. I’ve been to Cuba legally, two times. … So I’m very interested in Latin America and I can see some of the problems that they have that are being transferred into the United States. So that’s a part of my motivation for doing this.
Can you tell me about the initiative?
First of all, it does what federal law says we can do — restrict public benefits to anyone who is here unlawfully. … That has already been upheld in federal court. So we’re on strong ground on that provision.
The second part is the elimination of what’s called the child-only portion of the CalWorks program. The governor has actually proposed eliminating the entire program. Now they’ve just reduced a lot of benefits, but this (child-only) part is issued for 18 years in California, in violation of federal law (which has a) five-year maximum.
It goes to all the parents operating outside of the law. They’re either here illegally, they refuse to go to work, they refuse to be drug-tested, whatever the case. So those are the cases that will be terminated.
The other main provision is the change to birth certificate laws. That would require a parent, either mother or father, to sign an affidavit under penalty of perjury that they were either a citizen or permanent legal resident — that would be part of their papers at the hospital — and if that is not signed then the birth mother would be required to apply in person and provide government issued photo I.D., a fingerprint, the public-funded cost of that birth, and that could be provided to Homeland Security. So that would serve as a deterrent.
A deterrent for the birth tourism problem that we have. A lot of women are coming here just to give birth at taxpayer expense. … About 3 to 7 percent of the population is supposed to be undocumented in California, yet they’re having 20 to 25 percent of all the births. So we know for a fact that a lot of people come here for six months, three months, whatever, and deliver the baby and then return.
What’s the specific benefit of the distinction in birth certificates? A child has no say in whether their parents are here legally when they’re born. Is it targeting the U.S.-born children or is it targeting their parents?
Well it only provides one difference from the standard birth certificate, and those are the words “foreign parent.” So that is a classification that is honest and true. That parent is a foreign parent. It’s not either a citizen or a permanent legal resident. The other side is welcome to challenge that and then we can address the whole issue of citizenship in court, because there has never been a case that has decided that children born to those who are here on student visas, as tourists, who are undocumented, are in fact born citizens of the United States.
Isn’t that in the U.S. Constitution? (The 14th Amendment of the U.S. Constitution reads that “[a]ll 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…”)
Not at all.
Can you explain?
Well if you go back and read what they wrote, and what they said in the [Congressional debates], they distinctly said that “subject to jurisdiction” did not apply to [those] who were born to subjects of foreign powers.
They weren’t talking about immigrants. They were talking about people who were here temporarily, or without permission or whatever. That’s clearly what it was intended to mean and somehow the United States definitely got off track. … That’s what the authors said it was to mean. That’s lost to a lot of people today.
[In the 2004 Supreme Court case Hamdi vs. Rumsfeld] Justice Scalia and Justice Stevens joined forces and wrote [a dissenting opinion saying] that birth to a temporary legal resident of the United States is a presumed American citizen. So they know that there has never been a case which has decided that.
Are you saying the word “presumed” indicates that there hasn’t been enough case law?
Exactly. … The “subject to the jurisdiction” clause does not mean anyone born on U.S. soil. … It’s difficult for a lot of people today because they believe that the “subject to the jurisdiction” means everyone. It doesn’t mean that. It means that Congress has the power. They gave Congress the power to decide.
Why are you seeking signatures for this now?
Well it was planned before the economy really hit the skids. So it was already in the works, and then this just sort of hit home that we really don’t have the money to provide for these types of services and benefits. And this is the time. People have realized the state’s bankrupt.
Is this the best way to go about fixing the state’s budget problems?
Well I think there are a number of things. This is what a lot of people feel that never gets articulated in the newspapers. In the San Diego Union they think we’re just against immigrants or something like that.
What we’re saying is that when the last person comes off welfare in the United States, when juvenile offenders are no longer slapped on the wrist, when people are not sent to prison for drug offenses or minor crimes and non-violent felons are out there doing the jobs that Americans supposedly won’t do if they’re just required to work — work in the fields, do dishwashing. I mean someone could be sentenced to 10 years of dishwashing.
We could become more creative on what we do with our own people and give these juveniles jobs. That would help them learn and work up. They might own the restaurant someday, who knows? There are a lot of things we can do. I know they’re doing them in other states. Colorado is one of them, where they’ve got prisoners working out in the fields. There’s just a lot more we can do in California to remedy the workload.
That was what was drilled into my head in those classes in college, was that the reforms also have to come from Latin American countries as well, and this was made loud and clear by Mexican American students in those classrooms. We’re never going to require them to do that if we just have an open gate and we don’t find our own people to do these types of jobs.
I’ll say that if there is a shortage then there should be a guest worker program or something like that. But first you’ve got to get Americans working.
Aside from the economic argument, you can imagine that a lot of people see this initiative as a veiled way for its backers to push more of a xenophobic agenda. A lot of people call you and your supporters racist.
Well that’s how they have to talk. That’s how they win an argument is by name-calling. I don’t think that’s right. I’ve had a lot of exposure to Mexican-American people and to Latin America, so they don’t know that. That’s not what it’s about. It’s about Mexico and other countries taking care of their own people, and it’s about the United States taking better care of what we have here as well, especially on the birth tourism.
We just can’t really afford to pay for women to come here at their own choosing to give birth.
About that “birth tourism” argument, it wasn’t quite clear to me from your previous answer. What difference does it make whether a child’s birth certificate says “foreign parent” or not?
Well is it not true that they’re born to a foreign parent?
Okay. That’s just what the authors of the 14th Amendment were talking about. So we’re really standing up for the silenced authors of the 14th Amendment.
Just to have one space on a birth certificate that says foreign parent? It already says the parents’ birth place. They’re born out of the country, so there’s already a good possibility that they’re going to be a foreign parent anyway, unless they’re naturalized or have a green card or whatever. It’s just one distinction, that’s all.
People take all sides of the argument, whether they’re trying to argue for strict legality or whether they’re trying to argue for compassion or whether they’re trying to argue for reason. What is the most important issue, fundamentally, that your initiative addresses?
When I was reading Supreme Court decisions from the 1800s there was one decision in 1889 where the Supreme Court wrote “immigration by consent of the nation.” If Congress could not exclude aliens it would be to that extent subject to the control of another power. I think to some degree that is what’s happening today. We have surrendered our sovereignty and control to other nations. They are dictating immigration policy to us. …
I think automatic citizenship is really in a sense dictating to us what we’re supposed to do on immigration and in a sense it’s bankrupting California. …There are some real question marks there.
Are you optimistic about the possibility of your initiative going through?
Well it’s a long haul. We’ve got people talking about raising some big dollars coming to the table. Then we’ve got a huge volunteer force. One hundred and twenty thousand petitions have already been mailed. It looks real optimistic. The word is getting out there.