1. A nearly century long practice, at least the modern practice, of automatically issuing birth certificates to children born in the United States of non-diplomat (and evidently even in some cases involving children of diplomats) parents must be overturned.
2. The conventional wisdom defining the critical phrase, "subject to the jurisdiction" to mean something other than, subject to the laws of the United States. (This is the Yoo interpretation of the meaning of the phrase) must be overturned.
3. The meaning of "subject to the jurisdiction" must turn on some principle other than accident of geography and that almost certainly means determining the "allegiance" of the parents of the child.
4. The legislative history and the case law prior to the Supreme Court's determination in the case of United States versus Wong Kim Ark (1898) is reasonably clear that "domicile" is the determining factor in determining allegiance which, in turn determines jurisdiction. The court held that legally domiciled parents qualified their children for citizenship at birth. It did not speak with respect to parents who were illegally domiciled. If a court decides the matter, it must decide that illegal domicile is not domicile for the purposes of fourteenth amendment jurisdiction.
5. The legislative history and the case law prior to 1898 and the Plyler v. Doe (1982)case seem to hold that domicile even unlawfully achieved qualifies to render the birth child "subject to the jurisdiction." And therefore birthright citizenship ensues.
6. If there is no legislation attempting to redefine domicile as applied to illegal immigrants and their children, the court will have to depart from the common understanding of domicile and declare that illegal domiciles do not qualify as being subject to the jurisdiction under the meaning of the fourteenth amendment.
7. If Congress by legislation authorized by the provisions of article 1 section 8 granting Congress plenary power over "naturalization" or under provisions of the fourteenth amendment empowering Congress to enforce the provisions of the amendment against the states, the court must rule whether Congress has the power to define the scope of "domicile."
8. The holding of the Wong case is that Congress does not have the power by treaty (in that case with the nation of China respecting the naturalization of Chinese people) to change the provisions of the fourteenth amendment which create birthright in children born in America of legal immigrants. In order to prevail, this doctrine would have to be distinguished as applied to illegal immigrants to hold that Congress, which is without the power to amend the fourteenth amendment as it applies to legal immigrants, in fact has that power when applied to illegal immigrants. The dicta in the Plyler v. Doe (1982) case suggests the contrary of this proposition.
In assessing the probabilities of depriving children of illegal immigrants of birthright citizenship, the following should be considered: A) an executive order instructing the State Department not to issue passports etc. B) Congressional statute purporting to redefine domicile for illegal immigrants from the current conventional understanding. In assessing these probabilities one should understand that the four leftist Justices will certainly vote to retain automatic birthright citizenship based on geography. Even if they do not, they are almost certain to vote to declare that domicile is the same for illegal immigrants as for legal immigrants meaning that birthright citizenship will ensue. The votes of Justices Kennedy and Roberts are uncertain at best, but since race is involved it is not unreasonable to believe that they will be politically correct. The probabilities of succeeding in the Supreme Court are, therefore, not great.
Ted Cruz is correct but not complete. Conservatives should proceed with legislation and, assuming a victory on the national ticket, should also proceed with an executive order as described. All avenues should be pursued. Finally, by Article V a constitutional amendment should be advanced right now without reference to the federal Congress.
