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What does the US Constitution say about birthright citizenship? — 1 Comment

  1. The Supreme Court’s decision in United States v Wong Kim Ark was not based on whether his parents were in the US legally or illegally at the time of his birth. It appears that the court considered this issue irrelevant to the child’s citizenship. Nevertheless, there has not been a Supreme Court case addressing this specific issue.

    Opponents of birthright citizenship are proposing an untested legal theory: Congress can simply change the definition of “subject to the jurisdiction thereof” with regard to immigrants. This theory was spelled out in a 2010 paper written by Margaret Mikyung Lee for the Congressional Research Service:

    Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents

    (21-page PDF, seems to have been removed from government websites, so the above link retrieves a copy from archive.org.)

    Here is the relevant discussion:

    …One set of proposals would limit birthright citizenship in a way that its proponents believe would not necessitate a constitutional amendment… It essentially would statutorily define who is born “subject to the jurisdiction” of the United States under the Citizenship Clause notwithstanding the U.S. Supreme Court holdings in United States v. Wong Kim Ark. …

    …there may be an issue as to whether Congress could define “subject to the jurisdiction thereof” in a manner that would curtail a long-assumed right of persons born to aliens in the United States to be U.S. citizens regardless of the immigration status of their parents. One could argue that Congress has no power to define “subject to the jurisdiction” and the terms of citizenship in a manner contrary to the Court’s understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, particularly since that understanding includes a holding that the Fourteenth Amendment did not confer on Congress a right to restrict the effect of birth on citizenship as declared by the Constitution. In other words, there may be a distinction between the existence of a right under the Fourteenth Amendment (e.g., citizenship), which depends on the text and judicial interpretation, and the implications or scope of the right, which is subject to some degree of congressional regulation. However, since Congress has broad power to pass necessary and proper legislation to regulate immigration and naturalization under the Constitution, Art. I, § 8, cls. 4 & 18, arguably Congress has the power to define “subject to the jurisdiction thereof” for the purpose of regulating immigration. …

    It is impossible to know whether the courts would accept this theory.

    I’ll also note that, if Congress redefines “subject to the jurisdiction thereof” for a class of immigrants, this would also remove their due process protections as spelled out in the second sentence of the 14th Amendment.

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