CAUGHT BETWEEN SOVEREIGNS: FEDERAL AGENCIES, STATES, AND BIRTHRIGHT CITIZENS.

• Author: Remus, Angela R.

INTRODUCTION 226 I. THE BIRTH CERTIFICATE IN FEDERAL AND STATE LAW 230 A. The Advent of the State-issued Birth Certificate and Federal Reliance on It 230 B. Contemporary State Practice in the Issuance of Delayed Birth Certificates 232 C. Contemporary Federal Reliance on State-issued Birth Certificates 236 1. Federal Agencies 239 Health and Human Services 239 Social Security Administration 240 Department of State 242 2. Federal Courts 243 II. (UN)COOPERATIVE FEDERALISM, IMMIGRATION FEDERALISM, AND BIRTH CERTIFICATE ISSUANCE 247 A. Birth Certificate Issuance Highlights a Conceptual Gap in Existing Models of Cooperative Federalism 247 B. Birth Certificate Issuance Fits Uneasily in Existing Theories of Immigration Federalism 251 III. BALANCING FEDERAL AUTHORITY TO MAKE CITIZENSHIP DETERMINATIONS WITH THE REALITIES CONFRONTED BY PUTATIVE U.S. CITIZENS AND STATES 254 A. Establish More Prescriptive Federal Statutory or Regulatory Standards 255 B. Invite Federal Participation in State Proceedings 256 C. Condition Federal Treatment of the Birth Certificate Based on Its Federal Use 257 CONCLUSION 258 INTRODUCTION

"[T]he fundamental principle of citizenship by birth... was reaffirmed in the most explicit and comprehensive terms" by the Fourteenth Amendment, which enshrined a commitment to birthright citizenship--citizenship based on birth in state territory--that definitively extended even to the children of noncitizens born in the United States. (1) Yet, based on the best data available, as many as seven percent of U.S. citizens do not have access to documents that prove their citizenship. (2) While some of these citizens may have naturalized or obtained citizenship through their parents, this Article is concerned with birthright citizens who lack federally recognized birth certificates. Birth certificates issued by states are one of the most fundamental forms of proof of birthright citizenship, yet some U.S. citizens do not possess one. (3) Still other putative U.S. citizens possess a state-issued birth certificate that federal agencies and federal courts deem inadequate to prove birthright citizenship. It is the treatment of these birth certificates with which this Article is concerned.

More specifically, this Article explores federal agency nondeference to state-issued delayed birth certificates--including federal nondeference to the determinations of state agencies and even state court judges. The U.S. Department of State and Social Security Administration (SSA) rely heavily on state-issued birth certificates to issue passports and social security cards, and they do so almost unquestioningly when they are issued contemporaneously with in-hospital deliveries. Their inquiry into applicants' eligibility is much more searching when a delayed birth certificate is presented, involving what can amount to a de novo review of the underlying evidence--and they may reach a conclusion at odds with that reached by the state.

As a consequence, putative U.S. citizens with delayed birth certificates are caught between sovereigns: They are recognized by their state as birthright citizens, but denied the benefits of birthright citizenship by the federal government--a reality that limits the states' ability to give effect to their own birth certificates. The fact that federal and state governments can reach different conclusions about a person's entitlement to birthright citizenship--as demonstrated by federal agencies' ability to decline to recognize state-issued birth certificates--creates an untenable conflict between sovereigns and leaves unknown numbers of de jure U.S. citizens experiencing de facto denial of citizenship. (4)

This reality is significant for both human and scholarly reasons. Children born to noncitizen parents, children born in rural areas or border regions, and children whose parents were marginalized by virtue of race or poverty are particularly likely to face the conundrums presented by delayed birth certificates. (5) People caught in the limbo wrought by federal and state governments' disagreements over the facts of a putative U.S. citizen's birth may experience serious challenges in pursuing basic life projects--such as voting, obtaining employment, securing public benefits, or acquiring a driver's license--and may even be at risk of deportation to another country. (6) Their presence in the United States is akin to that of an undocumented immigrant, as opposed to a U.S. citizen, with all the challenges that such (non)status entails.

Beyond the ample human consequences caused when putative citizens are caught between sovereigns, the conflict between federal and state sovereigns should also matter to scholars of federalism and administrative law, and to scholars of cooperative federalism and immigration federalism in particular. The federal-state relationship involved in the recognition of birthright citizenship--and the failures in coordination that this relationship involves--sit squarely in the interstices of existing literature. As I argue below, the burgeoning literature on cooperative federalism lacks a model to accommodate the scenario presented by federal and state collaboration in the issuance and recognition of delayed birth certificates; the overwhelming focus of the cooperative federalism literature is on federal and state regulatory coordination. (7) Administrative law scholarship on adjudications, a closer fit for the decision-making at issue in the birth-certificate context, has only recently focused on inter-agency coordination between and among federal agencies, without addressing overlap in federal and state processes. (8) Likewise, the literature on immigration federalism neglects exploration of the interdependence of federal and state governments when recognizing and giving effect to delayed birth certificates.

The Article addresses this underexplored issue in three parts. In Part I, I explain the origins of the birth certificate and its early treatment in federal and state law. I then describe contemporary state birth certificate issuance processes and federal reliance on state-issued birth certificates. This Part highlights the unintentional manner in which the current federal-state relationship on the recognition and issuance of birth certificates has come to pass. This overview explains, in part, why states are indispensable partners in an area that might intuitively seem the exclusive purview of the federal government--the determination of citizenship by birth in the territory.

In Part II, the Article situates birth certificate issuance in existing scholarship on cooperative federalism, immigration federalism, and administrative law, highlighting the extent to which existing theories fail to address federal-state coordination on delayed birth certificate issuance and recognition. In so doing, I hope to enhance the scholarship by surfacing yet another way in which federal and state governments interact and highlighting areas that are ripe for further conceptualization. Specifically, I explore inter-agency coordination (and lack thereof) between the federal and state levels. This paradigm is absent from cooperative federalism and administrative law literature, which has been largely limited to federal-state regulatory coordination and federal inter-agency adjudication. Likewise, scholars of immigration federalism have left unexplored federal-state collaboration on birth certificate issuance and recognition, even as this scholarship does provide a justification for federal predominance.

Finally, in Part III, the Article suggests reforms that balance putative U.S. citizens' need for uniform federal and state recognition of their citizenship, national imperatives that justify federal predominance in matters of citizenship, and the importance of giving effect to states' fact-finding within their borders.

1. THE BIRTH CERTIFICATE IN FEDERAL AND STATE LAW

   The prevalent use of birth certificates postdates the Fourteenth Amendment's recognition of birthright citizenship by about fifty years, and was motivated by anti-child labor advocacy. Today, in contrast, justifications for federal reevaluation of certain types of state-issued birth certificates hinge principally on considerations related to immigration and the risk, perceived and actual, that their issuance poses for national security. This Part explores the history of state-issued birth certificates and their contemporary treatment at the federal and state levels.

   1. The Advent of the State-issued Birth Certificate and Federal Reliance on It

      The advent of the birth certificate and its pervasive use were motivated not by national security or immigration considerations, but rather by child labor reformers' efforts to combat child labor. The reformers' efforts and the changes they wrought in the early 1900s "transform[ed] the birth certificate into the epistemological foundation of individual identity" (9)--a foundation that persists to this day.

      In the early 1900s, between fifty and seventy-five percent of births went unregistered. (10) It was not until 1933 that ninety percent of live births were registered across all forty-eight states then comprising the United States. (11) For child labor reformers, the birth certificate was an essential tool to combat child labor. With the enactment of anti-child labor laws, proving age had become critically important. (12) Initially, employers and government officials relied on parents' affidavits attesting to a child's age--a process that was rife with abuse. (13) Birth certificates offered an alternative. (14) States like New York acquiesced to reformers' demands and implemented statutes creating a preference for state-issued birth certificates over all other documents, including baptismal records and parental affidavits. (15) As one historian described the change, the newfound reliance on government-issued birth certificates "represented a shift in epistemological authority" by making...