Arizona Targets Children of Illegal Immigrants with Birthright Citizenship Bill

This is a rush transcript from "On the Record," January 27, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Arizona is about to make even more waves when it comes to immigration policies. As you know, Governor Jan Brewer signed the nation's toughest and most controversial immigration bill last year, forcing immigrants to carry proof of citizenship at all times. Now, part of that law has been thrown out by the court. Now, though, a new Arizona law is being proposed targeting automatic citizenship for children of illegal immigrants.

Arizona state representative John Kavanagh joins us live. Good evening, sir.

STATE REP. JOHN KAVANAGH, R-ARIZ.: Good evening, Greta.

VAN SUSTEREN: All right, you call this the birthright citizenship bill. What is it?

KAVANAGH: Well, each year, hundreds of thousands of children of illegal immigrants or visiting tourists or people from overseas who are here legally but not U.S. citizens are given U.S. citizenship by virtue of their simply being born within the United States. We believe that that bestowing of citizenship, like a door prize, is based upon an erroneous interpretation of the 14th Amendment.

And we have crafted two companion bills, the purpose of which is to trigger a judicial review, hopefully at the Supreme Court level, of the phrase in the 14th Amendment, "subject to the jurisdiction thereof," which we believe is the reason for this erroneous interpretation that grants citizenship when it should not be granted.

VAN SUSTEREN: All right. Big problem that you have is -- or at least -- and I assume you'll agree with me -- that citizenship is a nationwide -- it's a USA-conferred thing -- matter. And it is -- you are -- you are an American. You are part of the United States of America. What your bill is, is filed in the state of Arizona that doesn't confer citizenship. How do you -- even if you were to get your bill passed, how do you even think that it would have any muscle at all and not be usurped by the federal question here?

KAVANAGH: Well, our bill is not granting citizenship. Our bill is defining Arizona and U.S. citizenship based upon what we believe to be the correct interpretation of that phrase. And we make that assertion based upon written statements by the authors of the 14th Amendment and the first couple of Supreme Court decisions, Slaughterhouse and Elk, which defined "subject to the jurisdiction" as not being you can be arrested and tried in our jurisdiction, but that you owe sole allegiance to the U.S.

And we're simply going to craft a bill that so defines Arizona citizenship and involves a notation on birth certificates that we believe will be challenged in court. And then we want to go through the federal court process, hopefully, getting to the Supreme Court because it's about time that the Supreme Court once and for all decided what this phrase means.

There's a lot of controversy. There are arguments on both sides. And we just want our day in court. We want to have a hearing because we think we're right.

VAN SUSTEREN: Well, I'd be surprised because it is on a national level whether -- whether you'd even -- even remotely get to that point and prevail. However, let me ask you this. The problem, as I see it, is the - - that has got people in Arizona rightfully upset is that their border is not secure, that people come into the state of Arizona, which is one of the reasons or the impetus for this bill that has now been challenged in federal court. Part of it has been reversed. And it really is a failure of our federal government to address issues of border security and illegal immigration which caused Arizona to do this.

Is -- and so now you're -- now you're looking at the children, the babies, the ones who through no fault of their own have ended up being born in this country. Would you not be -- is your -- is your beef not really with the federal government and its borders?

KAVANAGH: No. And this goes beyond the immigration battle. This goes beyond how do you define who an American is? Eighty-five percent of the countries in the world reject this ridiculous notion of granting citizenship based upon your GPS location at time of delivery. Eighty-five percent of the countries say you have to have at least one parent who's a citizen to be a citizen.

So what we're proposing is nothing that's off the wall or extreme. It's what almost every sane country does. Every country in Europe does this. It's bad policy to give away citizenship like a door prize, especially to the children of parents who snuck in the back door.

VAN SUSTEREN: Would you not be -- if, indeed, you're right on that, that that's the way it should be done, would you not be more effective or likely to prevail if you got your congressional delegation, your U.S. senators, your members of Congress, to instead prevail upon the U.S. Congress, rather than the state government in Arizona?

KAVANAGH: Well, thankfully, both Senators McCain and Kyl have called for a discussion of birthright citizenship. There is a bill in Congress to end birthright citizenship. But frankly, Arizona hasn't been getting too much of a response from Washington. So we see no problem...

VAN SUSTEREN: I will agree with that.

KAVANAGH: ... with carrying out this (INAUDIBLE) tactic.

VAN SUSTEREN: I certainly agree with that. I mean, I certainly know that Arizona has tried to get the attention of the federal government on many issues. And it's, like, Arizona who? I don't -- I -- you know, that certainly is, indeed, a big problem. Representative, thank you very much, sir. And I hope you'll continue to come back and join us.

KAVANAGH: I hope so. Thank you.