Yes. Interesting that the author suggest Congress is free to “liberalize’ but not the other way….
He does point to the 5 year naturalization requirement. So that term has been settled on, seems a good fit.
The notion of intent to reside by an Illegal, I’m none too sure on. Certainly under a President Obama an Illegal has a reasonable expectation of being able to stay as long as he likes. Under a Trump presidency it would likely be a different matter.
I believe he is saying that Congress can liberalize or restrict naturalization over which it has exclusive plenary power but Congress may not restrict the constitutionally defined right of citizenship by birth. If Congress chooses to liberalize the acquisition of citizenship for those born here, it is not changing the definition of citizenship by birth (jus soli) but is simply expanding the process of naturalization.
I think Mark Levin and others are flat wrong when they attribute the power to Congress by virtue of article 1 section 8 to redefine the fourteenth amendment. That is a power to affect naturalization only.
To apply this: if the rules of how domicile is established are by residency plus intent (to establish permanent connection) and that is defined by common law or the understanding as at the time of the passage of the fourteenth amendment, Congress may not arbitrarily regulate how that is to be determined for the purposes of birth citizenship although it certainly may do so for the purposes of naturalization or establishing residence or citizenship in a state.
