Taranto relies on some very old precedents for his argument below and that is a fairly weak strategy. Is the Dredd Scott precedent still binding, for instance? SCOTUS can reverse itself and if Congress passed a law interpreting the 14th Amendment as applying only to children of people who were legally in the USA, SCOTUS might well uphold that. Their rulings on the 14th can be so flexible that they ignore its words completely — as shown by the way that have upheld various “affirmative action” practices. If the “equal protection” clause of the amendment means nothing to them, why should they be fussy about other clauses in it? Note that the equal protection clause was specifically added to prevent discrimination on the basis of race but SCOTUS has ignored it in “affirmative action” cases nonetheless.

Taranto also overlooks that Congress has the right to say what lies within the jurisdiction of SCOTUS. And given their ignoring the 14th Amendment by permitting affirmative action, their rulings on that amendment deserve no respect anyway and removing that amendment from their jurisdiction could well be appropriate. In which case Congress could pass whatever law it liked about “anchor babies” and it would be immune to challenge. Such a law is not foreseeable at the moment but it is not impossible.

The moral case that children should not be punished for the misdeeds of their parents is unexceptionable but whether that is what is at issue is open to debate.

More importantly, Congress could well wish to give the administration the power to deport the many gang bangers among the so-called “anchor babies” and the moral right to do that would probably not be widely disputed

Why are illegal aliens’ U.S.-born children–sometimes called “anchor babies”–considered natural-born citizens? … The short answer is that the Supreme Court has never ruled on the specific question of whether children born in the U.S. are constitutionally entitled to American citizenship if their parents are here illegally, but the prevailing assumption is that they are. Those who disagree are probably wrong, given the language of the Constitution and the logic of case law on related questions.

Section 1 of the 14th Amendment provides that “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.” Section 301 of the Immigration and Nationality Act echoes this language, granting birthright citizenship to any “person born in the United States, and subject to the jurisdiction thereof.”

The only qualification is that phrase “subject to the jurisdiction thereof.” To anti-immigrant organizations, it is a loophole big enough to drive a Mexican truck through. A small group of Republican congressmen have repeatedly introduced a bill called the Citizenship Reform Act–the preceding link is to the 2005 version–that would amend Section 301 to provide that a child is “subject to the jurisdiction thereof” only if his mother is a U.S. citizen, national or legal resident alien or–if his parents are married–if his father is. Children of illegal aliens (or legal nonresident aliens, such as tourists) would be deemed outside U.S. jurisdiction and thus ineligible for natural-born citizenship.

The bill, which has never made it out of committee, would apply only to children born after its enactment, so that it would change rather than clarify the meaning of the phrase in question. Our analysis proceeds from the premise that Congress has the authority to enact a law redefining statutory language in this way. What it lacks, however, is the power to alter the terms of the Constitution, except by proposing an amendment. If the children of nonresident aliens are “subject to the jurisdiction thereof” under the 14th Amendment, then Congress may not deny their citizenship.

As we noted above, the Supreme Court has never ruled on precisely this question. In U.S. v. Wong Kim Ark (1898), the court held that a child born to parents who were Chinese citizens was entitled to U.S. citizenship. Wong Kim Ark’s parents had both been legal residents of San Francisco at the time of his birth in 1873, and the justices did not consider the distinction between “legal” and “illegal” aliens, which hardly existed at the time. Nineteenth-century immigration was subject to almost no regulation, with the notable exception of the Chinese Exclusion Act of 1882. That was the law under which the U.S. government sought to classify Wong Kim Ark as a foreigner and prevent him from re-entering America after a visit to China.

The court in Wong Kim Ark recognized three exceptions to birthright citizenship–categories of persons who, at birth in the U.S., were not “subject to the jurisdiction thereof”: children of foreign diplomats, children of foreigners from a hostile power occupying U.S. territory, and Indians born on reservations. (Congress abolished the Indian exclusion by statute in 1924.) What the people in these categories have in common is that they are subject to the jurisdiction of a sovereign entity other than the United States pursuant to international law, including treaties between the U.S. and Indian tribes.

It defies logic to assert that illegal aliens fall into a similar category. Most obviously, immigration laws would be a nullity if violators were immune from U.S. jurisdiction. Illegal aliens also are legally required to pay taxes; they can be charged, prosecuted and punished under federal and state criminal laws; they can be civilly sued; and they won’t get the State Department’s help if they seek to evade parking fines.

Further, the Supreme Court has held that American “jurisdiction” extends to aliens, including illegal aliens, for the purposes of another 14th Amendment provision. In Yick Wo v. Hopkins (1886), Justice Stanley Matthews wrote:

The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.

In Phyler v. Doe (1982), the court expressly extended this principle to what by then were known as illegal aliens. It overturned a Texas statute authorizing local school districts to refuse to enroll illegal aliens as students. The youngsters in question were not anchor babies, having been born abroad. Their presence in the country was contrary to U.S. immigration law, and they could have been subject to deportation proceedings.

One of the unsuccessful defenses Texas raised was that, as Justice William Brennan summed it up, “undocumented aliens, because of their immigration status, are not ‘persons within the jurisdiction’ of the State of Texas, and that they therefore have no right to the equal protection of Texas law”:

We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. . . .

To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.

Phyler might have had a different result had it arisen later. It was a 5-4 decision by a court more liberal than today’s, and Chief Justice Warren Burger wrote a compelling dissent that Justices Byron White, William Rehnquist and Sandra Day O’Connor joined. But on the matter of jurisdiction, the nine were unanimous. As Burger wrote:

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state.

One could perhaps distinguish the citizenship clause from the equal protection clause on the theory that a narrower construction of “jurisdiction” would not “undermine the principal purpose” of the former the way it would the latter. But it is important to note that the citizenship clause makes no mention of parents. It guarantees citizenship to “all persons born . . . in the United States and subject to the jurisdiction thereof.”

Wong Kim Ark established that a child born in the U.S. to alien parents has a constitutional right to citizenship. Being born is never a crime, and it would be both an injustice and a grave legal error to deny a child his constitutional rights because his parents violated the law.

SOURCE See the original for links