Yes, Birthright Citizenship is Required by the 14th Amendment

The Monkey Cage has a post today about the issue of birthright citizenship, the idea that being born in the United States automatically grants one US citizenship. Though the post is about public opinion, what I found interesting is that in 2009, Georgia Republican Nathan Deal introduced the Birthright Citizenship Act, which would have denied automatic citizenship to children of illegal immigrants born in the United States. Now, my first thought was, “Uhh, doesn’t the 14th Amendment explicitly grant citizenship to anyone born in the US?” Obviously a federal law can’t overrule a constitutional amendment, so if passed, wouldn’t the Act be meaningless?

So I took a look at the first sentence of the 14th Amendment:

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.

Turns out I forgot about that pesky “subject to the jurisdiction thereof” phrase. So what does that mean anyway? Aren’t the children of illegal immigrants subject to our laws? In what sense would they not be “subject to the jurisdiction thereof”? 

The two biggest cases on the citizenship clause turn out to be Elk v. Wilkins and United States v. Wong Kim Ark. The first established that Native Americans do not qualify for birthright citizenship, because they owe immediate allegiance to “distinct political communities.” Given how crazy complex Native American law is, I thought this didn’t provide much guidance. 

Wong Kim Ark, on the other hand, does. The Court ruled that children of Chinese immigrants are granted birthright citizenship. Even children of foreign citizens are granted birthright citizenship, so long as their parents:  

• have permanent “domicile” in the United States,
• are carrying on business in the United States,
• are not employed in any official capacity by a foreign power,
• and are not members of a foreign occupying force.

I can’t see a reasonable argument that illegal immigrants do not primarily reside, i.e. have domicile, in the United States. It may not be legal, but in almost all cases this is exactly where they meant to be, and to stay. Same point on business - perhaps not legal, but certainly real. And as much as conservatives may talk about the border being overrun by an invasion of illegal immigrants, they are not employed by a foreign power and certainly are not members of an occupying force.

What this means is that almost all children of illegal immigrants will be covered by the citizenship clause of the 14th Amendment, and as such, no federal law can deny them birthright citizenship. So unless conservatives can muster support for another constitutional amendment, birthright citizenship isn’t going anywhere.