There has been a lot of debate about the birthright citizenship clause of the Fourteenth Amendment which reads, "All 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." The Supreme Court case U.S. v Wong Kim Ark (1898) is often cited to make the point that the birthright citizenship clause has been applied to non-African American immigrants. But some conservatives dispute whether the case is applicable to the children born to undocumented immigrants. That argument is a non-starter and there is evidence in Wong Kim Ark and other case law to cast serious doubt upon it. (h/t Professor Kunal Parker)
By no means do all conservatives agree with Trumps' desire to repeal the birthright citizenship clause. Indeed, one of the most eloquent critics of the repeal of birthright citizenship is Republican and Federalist Society member Margaret Stock, an expert on the subject and the rest of U.S. immigration law. However, others have taken the tack that Wong Kim Ark was about immigrants legally residing in the U.S. albeit ineligible for citizenship (due to the provisions in the Chinese Exclusion Act) and therefore the Supreme Court has never actually rendered a judgement on whether the birthright citizenship clause covers the children born to undocumented immigrants. The second related strategy is to question the words "subject to the jurisdiction of" actually applies to undocumented immigrants to argue since the U.S. never authorized their entry in the first place. John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law, puts forth such a view in today's New York Times:
“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”
The Supreme Court has never held otherwise. Some advocates for illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on U.S. soil to parents who were lawful, permanent (legally, "domiciled") residents was a citizen.
One need only turn to the actual text of Wong Kim Ark to see that Eastman is wrong. The case was about Wong Kim Ark, a U.S. born man of Chinese descent whose parents were legally working and residing in the U.S. but who were also rendered racially ineligible for citizenship under the terms of the Chinese Exclusion Act. Mr. Wong as an adult traveled to China and was returning to the U.S. and denied entry based on the Chinese Exclusion Act. Wong sued saying he was admissible as a citizen by birth on U.S. soil, the Court agreed.
That Court considered the meaning and legislative history not just of the Fourteenth Amendment, but also of the Civil Rights Act of 1866 that worked in tandem to give newly freed African Americans full citizenship. The Wong Kim Ark Court stipulated only three exceptions to "subject to the jurisdiction of" and they are: "with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." (@693) The Court was laying out a geographic conceptualization of citizenship in which anyone born within the territorial lines of the nation was to be granted citizenship, barring the already stated exceptions. To erase any confusion, the Court wrote emphatically:
The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
There is no exception for the children born to undocumented immigrants. Full stop.
In fact, the Court went out of it's way in that case to express concern for the fate of the children born to European immigrants if birthright citizenship were not conferred broadly. It stated:
To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.
The irony was the Court's concern in 1898 was for the precarious status of the children of white ethnics.
Even if one is still not convinced of this reading of Wong Kim Ark v U.S., the arrival on the scene of Plyler v Doe (1982) greatly complicates the line of argument that Eastman and his ilk are advancing. Recall that Plyler was the case about the right of undocumented children to access public education in Texas.
As part of the justification for granting these children that right, the Court majority referred to the entirety of the undocumented population in the U.S. as a "permanent caste of undocumented residents" and to undocumented children, the plaintiffs in the case, as " special members of this underclass." (@218-219)
What makes them special, the majority explained was the lack of agency of an undocumented child versus an undocumented adult. The majority stated, "But the children of those illegal entrants are not comparably situated. Their parents have the ability to conform their conduct to societal norms, and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases can affect neither their parents' conduct nor their own status. Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice." (@220) Given the Plyler majority's awareness of the limited options of children brought into the country by undocumented parents, it would not be a stretch for members of the Court to show similar concern for mere infants born in the U.S. to undocumented parents.
Setting aside all these inside-baseball doctrinal debates, perhaps the most salient point is that repealing birthright citizenship simply will not curb immigration as I have recently argued in the Washington Post.