Nice opinion, but the Supreme Court has already ruled on this matter. Unless there is a constitutional amendment, it's not happening.
U.S. v. WONG KIM ARK
http://caselaw.findlaw.com/us-supreme-court/169/649.html
This was a writ of habeas corpus, issued October 2, 1895, by the district court of the United States for the Northern district of California, to the collector of customs at the port of San Francisco, in behalf of Wong Kim Ark, who alleged that he was a citizen of the United States, of more than 21 years of age, and was born at San Francisco in 1873, of parents of Chinese descent, and subjects of the emperor of China, but domiciled residents at San Francisco; and that, on his return to the United States on the steamship Coptic, in August, 1895, from a temporary visit to China, he applied to said collector of customs for permission to land, and was by the collector refused such permission, and was restrained of his liberty by the collector, and by the general manager of the steamship company acting under his direction, in violation of the constitution and laws of the United States, not by virtue of any judicial order or proceeding, but solely upon the pretense that he was not a citizen of the United States.
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The Citizenship Clause of the 14th Amendment
Before the 14th Amendment, citizenship was granted by states, and subsequently recognized by the federal government. Although the 13th Amendment officially ended slavery in 1865, it was not sufficient for the purpose of making freed slaves citizens of the United States. In the 1857 case Dred Scott v. Sandford, the Supreme Court held that blacks, even those freed from slavery, were not citizens of the United States.32 In the aftermath of the Civil War, some states were preventing freed slaves form gaining federal citizenship by denying state citizenship. “Black Codes” passed into law by some states denied many other civil rights.
These injustices led to the Civil Rights Act of 1866, which was aimed, in part, at overruling the Dred Scott decision and which laid the groundwork for enactment of the 14th Amendment two years later. The Act declared, among other things:
“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;”33
Two years later in 1868, the Citizenship Clause of the 14th Amendment would be closely patterned on the citizenship declaration of the 1866 Act. Both intended to exclude from birthright citizenship at least some U.S.-born persons where a competing claim of subjectship or citizenship existed. The 1866 Act drew the line by excluding persons “subject to any foreign power,” while the 14th Amendment included only persons “subject to the jurisdiction” of the United States.34 In either case what was being weighed was competing claims to the future allegiance of the child.35
“Subject to the Jurisdiction Thereof.” The first sentence of Section 1 of the 14th Amendment of the U.S. Constitution, also known as the Citizenship Clause, reads as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”36
This clause contains two requirements for obtaining U.S. citizenship by birth: (1) the birth must have occurred within the United States; and (2) the person born must be subject to the jurisdiction of the United States. The second requirement imposes a consensual qualification to birthright citizenship.37 Advocates of granting automatic citizenship to children of illegal aliens almost always focus only on the first requirement, arguing birth on U.S. soil, alone, guarantees U.S. citizenship.38 These advocates also argue that “subject to the jurisdiction” simply means being susceptible to police authority (i.e. being required to follow laws and pay fines for violations). But such an interpretation creates a redundancy in the 14th Amendment, as all people born in the United States are subject to the laws of the land. Accepting the premise that “subject to the jurisdiction thereof” simply means being “subject to police power” turns a critical and carefully-written portion of the Citizenship Clause into a redundancy. Unquestionably, basic statutory interpretation requires one to view each clause as a distinct and separate requirement, and no honest jurist would read a redundancy into a statute, much less a constitutional amendment.39
The inquiry, then, is focused on the intent of those who wrote the clause and whether a child born in the United States to an illegal alien is a person who is “subject to the jurisdiction” of the United States, and consequently an automatic citizen of the country. No one doubts that the main purpose of the 14th Amendment was to ensure that freed slaves would be recognized as U.S. citizens. Nevertheless, some argue that children of illegal aliens should enjoy the same privilege. But when the 14th Amendment was enacted, there were few limits on immigration and very few persons in the United States would have been residing here illegally. Moreover, given the costs and risks of long-distance transportation, tourists and other temporary visitors were limited in numbers. There is simply no direct evidence that Congress wished to confer citizenship on the children of temporary or illegal visitors, but there is some evidence that they did not.
The most informative source on the intent of Congress is the Congressional Globe, the earlier version of today’s Congressional Record. The development of the language that made it into the 14th Amendment is revealing. At the outset, the authors of the 1866 Act and the 14th Amendment understood that a certain amount of respect or allegiance to the United States was expected of all persons who found themselves within our borders, even from foreigners visiting temporarily, and that this alone would not justify a grant of citizenship. During debate on the 1866 Act, Sen. Lyman Trumbull (R-Ill.) explained that his goal was “to make citizens of everybody born in the United States who owe allegiance to the United States,” but noted a lack of clarity in such a phrasing, explaining:
“I thought that might perhaps be the best form in which to put the amendment at one time, ‘That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;’ but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.”40
The “sort of allegiance” owed by an alien “temporarily resident” in the United States, legally or illegally, would seem to include a duty to follow basic laws, but not the duty of loyalty demanded of a citizen. While advocates for the rights of illegal aliens argue that this duty to obey our laws (and an alien’s susceptibility to being arrested for a violation of our laws) makes an alien “subject to the jurisdiction” of the United States, that was not the view of those who framed the Citizenship Clause. In the 1866 Act, any such interpretation was precluded by using the phrase “not subject to any foreign power.”
Soon thereafter, the phrase “not subject to any foreign power” would reappear as “subject to the jurisdiction thereof” in the 14th Amendment. Thus, while the language of the 1866 Act distinguished aliens on the basis of their continuing obligation of allegiance to a foreign power, the 14th Amendment focused mainly on the alien’s degree of allegiance to the United States. However, in both cases, the purpose was to avoid the granting of citizenship to people with only a temporary sort of allegiance. Opposition to granting citizenship to individuals subject to a foreign power was strong throughout the Senate.41 It does seem that the framers of the Citizenship Clause had no intention of establishing a universal rule of automatic birthright citizenship.42
On May 30, 1866, Sen. Jacob Howard (R-Mich.) initiated debate on a resolution that would become the Citizenship Clause of the 14th Amendment. In defining citizenship by birth, Sen. Howard explained:
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”43
Whether Sen. Howard thought that the “jurisdiction” clause would exclude only the children of diplomats or some larger category of “foreigners” has been much debated. In fact neither side of the debate can rely exclusively on Sen. Howard’s statement since the statement (or the reporting of the statement) is grammatically incomplete, and one’s interpretation depends on how one chooses to complete the grammar. When the senator said…
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers…”
…he may have meant either:
(1) “This will not, of course, include persons born in the United States who are foreigners, aliens, [or those] who belong to the families of ambassadors or foreign ministers…”
…or:
(2) “This will not, of course, include persons born in the United States who are foreigners [or] aliens who belong to the families of ambassadors or foreign ministers…”
The former interpretation would support the narrative that children born to illegal aliens are not considered citizens, while the latter would deny U.S. citizenship to only those born to family of visiting government officials. Since we cannot know for sure what Sen. Howard meant to say, the most one can conclude is that he did not expect that every U.S.-born child of an alien would automatically be made a citizen by the 14th Amendment. Interestingly, as noted below, the Supreme Court, even when expanding the scope of birthright citizenship, has assumed the first and more exclusive reading.
There is a better record of how the sponsors expected the 14th Amendment to apply to tribal Indians. Sen. Trumbull, sponsor of the 1866 Act, offered his definition of “subject to the jurisdiction:”
“What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.”44
Sen. Trumbull went on to explain how this clause might apply to American Indians:
“It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’”45
Sen. Trumbull’s explanation hearkens back to the 1866 Act and its exclusion of persons “subject to any foreign power.” Today, it cannot be denied that an illegal alien is, under law, a citizen of a foreign country and therefore subject to that country’s jurisdiction. An illegal alien owes at least some amount of allegiance to their home country, if not complete allegiance. They are not under any sense of the law a citizen of the United States. As explained by Thomas Jefferson: “Aliens are the subjects of a foreign power.”46 Although, as a result of federal statutory law, all native-born Indians are regarded as citizens today, at the time of the 14th Amendment Indian tribes were treated as foreign powers, and members of the tribe were presumed to owe their first allegiance to the tribe. There was no need to refer specifically to Indian tribes in the Amendment because it simply stood to reason that, for an Indian, mere presence in the United States could not be treated as a transfer of allegiance from his tribe to the United States. Query whether, in the 21st century, it stands to reason that a French tourist who gives premature birth to a child during a two-week visit to Disney World should, by virtue of her presence in Orlando, be regarded as having forsaken her allegiance to France.
If the question of “jurisdiction” boils down to one of allegiance, and under U.S. jurisprudence allegiance is a voluntary association, on what basis can a newborn child be found to have chosen an allegiance to his parent’s country over allegiance to the United States, or vice versa? It was understood by the authors of the 14th Amendment that jurisdiction as to the child would be imputed from the status of the parents. Sen. Reverdy Johnson (D-Md.) explained that parents must be “subject to the authority” of the United States if their children born here are to be classified as having acquired the status of U.S. citizen:
“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”47 (emphasis added)
Are illegal aliens subject to the authority of the United States? Not in the way contemplated by authors of the 14th Amendment. As explained earlier, the authors of the 14th Amendment explained that being subject to the jurisdiction of the United States means not owing allegiance to anybody else.
Without asking immigrants themselves, we cannot know where their allegiances lie, but in the case of Mexican immigrants, who constitute nearly 60 percent of the illegal alien population in the United States,48 we do know what their government thinks. It appears these individuals owe at least partial, if not complete allegiance to the government of Mexico.
For example, in its recent amicus brief to the U.S. District Court overseeing the injunction hearing on Arizona’s anti-illegal immigration bill S.B. 1070, the government of Mexico refers to Mexican illegal aliens as “its people” and “its citizens.”49 This is not a new perspective.
Former Mexican President Vicente Fox appointed one Juan Hernandez to head a governmental agency called the Institute for Mexicans Abroad. According to Mr. Hernandez’s own website, the agency’s principal objective is to “serve and dignify the 24 million whom President Fox has called heroes — the countrymen who live in foreign lands.”50 Mr. Hernandez explains: “We are betting on that the Mexican-American population in the United States…will think ‘Mexico first’ … But now I want the third generation, the seventh generation, I want them all to think ‘Mexico first.’”51
Ultimately, in assessing the statements found in the Congressional Globe, it is important to remember that floor statements said during debate in the House or Senate are not law; it is only the language of the law itself upon which Congress has agreed. Because the “subject to the jurisdiction” language can be, and has been, susceptible to so many interpretations, it may be prudent for the current Congress to clarify, by statute, the full scope of the 14th Amendment’s Citizenship Clause.
If Congress does not act first, there is a chance that someday the courts, with nothing more than these floor statements to guide them, will be forced to clarify what is now uncertain. It is arguably better for Congress to determine the proper scope of the 14th Amendment based on careful deliberations, rather than having so important a decision rendered by the judiciary based on a handful of 19th century floor statements.
The Supreme Court Weighs In
The U.S. Supreme Court has shed some light on the meaning of “subject to the jurisdiction thereof” in the years that followed the passage of the 14th Amendment. The first definition from the Supreme Court appeared in 1873 in the Slaughter-House Cases, a series of cases not dealing specifically with birthright citizenship. Here, the Court explained:
“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”52
This interpretation is consistent with Sen. Howard’s floor statement on the scope of jurisdiction, discussed above, as not including foreigners, or aliens, or children born to foreign government officials. Even the dissenting justices agreed with this restrictive interpretation.
The Supreme Court addressed “subject to the jurisdiction” again in 1884 in Elk v. Wilkins, a case that focused on the citizenship of an American Indian who had been born into a tribe but had later severed his tribal ties. Here, the Court emphasized that a person not born into U.S. citizenship could not make himself “subject to the jurisdiction” of the United States without the consent of the United States. According to the Court: “no one can become a citizen of a nation without its consent.”53 Specifically, the Court held that although the plaintiff was born in the United States, he was not granted U.S. citizenship through any treaty or statute and was consequently not subject to the jurisdiction of the United States under the 14th Amendment. The Court defined the jurisdictional requirement of the Citizenship Clause as requiring a person to be:
“…not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”54
The Court also explained that Indians born in tribes geographically located within the United States are “no more ‘born in the United States and subject to the jurisdiction thereof’…than the children of subjects of any foreign government born within” the United States “or the children born within the United States, of ambassadors or other public ministers of foreign nations.”55
This holding is clearly damaging to those who argue the 14th Amendment grants citizenship to children born to illegal aliens because an illegal alien is certainly a subject of a foreign government. A child born to such an individual is not, according to the Elk Court, subject to the jurisdiction of the United States. Additionally, this holding is consistent with the interpretation of Sen. Howard’s floor statement that the 14th Amendment denies citizenship not only to children born to parents who are visiting foreign diplomats, but also to children born to foreigners, generally.
Another Supreme Court holding that is often cited is the 1898 case United States v. Wong Kim Ark which held that Wong Kim Ark, a child born in the United States to legal resident Chinese immigrants, was a birthright U.S. citizen under the 14th Amendment. According to the Court:
“[A] child born in the United States, of parents of Chinese descent, who at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and… are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”56 (emphasis added)
The Court gave little weight to the consensualist attitudes shown in the Congressional Globe floor statements and based its decision instead on a theory that the 14th Amendment was simply a codification of English common law, citing the English jurists William Blackstone and Edward Coke. Given the Wong Kim Ark Court’s reliance on English common law, it is worth observing that Justice Story, who years earlier held that U.S. citizenship law derives from English common law, wrote the following in his famous Conflict of Laws treatise:
“A reasonable qualification of the [English birthright citizenship] rule would seem to be that it should not apply to children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business.”57
In concluding that “subject to the jurisdiction thereof” in the Citizenship Clause should be very broadly construed, the Court in Wong Kim Ark held that it simply means the same thing as “within the jurisdiction,” a phrase found in the Equal Protection Clause of the 14th Amendment:
“It is impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence [of the 14th Amendment], as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.’”58
Setting aside some of its own earlier commentary, the Court surmised that the “real object” of the Citizenship Clause “would appear to have been to exclude, by the fewest and fittest words… two classes of cases — children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State.”59
The strongly worded dissent reiterated much of the earlier precedent, explaining:
“To be ‘completely subject’ to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.
“Now I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country. … The Fourteenth Amendment was not designed to accord citizenship to persons so situated and to cut off the legislative power from dealing with the subject. … It is not to be admitted that the children of persons so situated become citizens by the accident of birth.”60
Some scholars argue that the dissent is more aligned with the established precedent and that the allegiance of the child in this case should have followed that of his parents, as was held to be the rule in Elk.61 Other scholars feel that Congress probably did intend to extend citizenship to individuals like Wong Kim Ark but only with the expectation that the actual effect of such an application would be trivial.62
The only 20th century case that touches on the 14th Amendment’s application to illegal aliens is the 1982 case Plyler v. Doe, which held that the denying of public-school admission to illegal-alien children would violate the Equal Protection Clause of the 14th Amendment. Although the case did not require the Court to decide the scope of birthright citizenship, Justice William Brennan, writing for a split 5-4 Court, added an endnote that cited language from Wong Kim Ark and added the following language:
“[N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”63
Of course, policymakers have made plenty of distinctions as between the two groups. According to University of Texas law professor Lino A. Graglia, Justice Brennan seems to have based his reasoning on the mistaken premise that Wong Kim Ark decided the case of illegal aliens.64 Ultimately, this dictum hardly represents an investigation into the appropriate scope of the 14th Amendment’s Citizenship Clause and it does not bind any subsequent court. As Yale Law professor Peter Schuck has written: “no court has ever squarely decided the question of the status under the Citizenship Clause of the native-born children of illegal and nonimmigrant aliens.”65
While the Slaughter-House Cases, Elk v. Wilkins, Wong Kim Ark, and Plyler v. Doe provide food for thought and fodder for debate, it remains to be seen whether a 21st century court will be more inclined to follow the reasoning of Elk or the reasoning of Wong Kim Ark if and when faced with having to make an unprecedented decision about whether the U.S. Constitution imposes U.S. citizenship on the U.S.-born children of aliens who have been admitted only for “temporary purposes” or who have not been admitted at all.
What About the Plenary Power Doctrine?
If Congress were to declare an end to birthright citizenship for the U.S.-born children of aliens not admitted to permanent residence, the law would certainly be challenged in court, likely forcing the Supreme Court to render a final decision. In addition to weighing its own 14th Amendment jurisprudence, the Court would have to address the plenary power doctrine which holds that the political branches — the legislative and the executive, rather than the judicial — have sole power to regulate immigration as a basic attribute of sovereignty.66
As Justice Felix Frankfurter, an immigrant himself, once held in the defense of the plenary power doctrine:
“Though as a matter of political outlook and economic need this country has traditionally welcomed aliens to come to its shores, it has done so exclusively as a matter of political outlook and national self-interest. This policy has been a political policy, belonging to the political branch of the Government wholly outside the concern and the competence of the Judiciary… In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit. One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”67
Advocates of maintaining automatic birthright citizenship for illegal aliens argue that a constitutional amendment is necessary to change the current policy. However, the ambiguities surrounding the phrase “subject to the jurisdiction thereof” and the scope of Congress’s plenary power to regulate immigration have caused historians and legal scholars to conclude that Congress itself has the power to interpret the phrase and to impose reasonable limits on its application. As explained by Professor Erler:
“We have seen that the framers of the Fourteenth Amendment unanimously agreed that Indians were not ‘subject to the jurisdiction’ of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.”68
This sentiment is shared by the influential Judge Posner, who held in a recent decision that “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.”69 Posner concluded: “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”70
