Prof. Yoo makes the argument and expresses the current conventional understanding of the fourteenth amendment citizenship clause and particularly the meaning of the clause, "and subject to the jurisdiction." In order to stop the current practice of issuing passports to anchor babies it is necessary somehow to get the Department of State to change its understanding of the constitutional mandate. In other words the State Department must disagree with Prof. Yoo and instead believe the argument of Mark Levin as he quotes Sen. Jacob Howard.
I remind you this constitutional amendment was passed by both houses of the federal Congress and three quarters of the state legislatures. The opinion of one man, no matter how influential in the drafting, is certainly not dispositive of determining the meaning of the amendment, although concededly it should be reckoned with. In reckoning with these words one opens up a discussion of what was the understanding in 1868 of the phrase "subject to the jurisdiction"?
The author in the Law Review article quoted above makes a compelling case that the meaning of jurisdiction in 1868 in this context was domicile and domicile equals a residence plus intent to establish a connection. He argues that this was the state of the law as well as the understanding of individuals like Sen. Howard. Why domicile? Because the matter of being subject to the jurisdiction means identifying the state to which the individual owes his allegiance and that is determined by domicile.
If this argument is persuasive, and the author has marshaled the facts and the law in a scholarly presentation, it means that children of aliens are in fact citizens when born providing their parents were domiciled. Even worse news, the fact that the parents were illegal does not affect their ability to establish a domicile here for their children who are therefore citizens by birth. However, tourism babies are not, according to the author, entitled to birth citizenship because their parents had not established a domicile.
At this point frustrated conservatives generally revert to Mark Levin citing his reference to article 1 section 8 granting Congress the power over naturalization. Naturalization is different from birth citizenship. Congress has plenary power over naturalization and, according to the Wong case, no power to redefine birth citizenship by defining domicile or playing with the rules of naturalization. Congress can always pass a law expelling aliens but it cannot redefine the fourteenth amendment.
At this point reference is usually made to the provision of the fourteenth amendment which grants Congress the power to enforce the amendment but that power has to do with enforcement against the states and not the power to redefine the amendment.
Any legislation in an attempt to cure the anchor baby problem will be vetoed by Barack Obama even in the unlikely event that we can get it through both houses of Congress and past a Senate filibuster. So nothing will happen so long as Obama has his pen. If a Republican is elected in January 2017, he can simply order the Department of State to decline to issue passports to any child born of illegal aliens whether they are domiciled or not. No doubt several states will continue to issue birth certificates but the passports will stop until the matter is adjudicated by a federal court.
That it seems to me is the quickest way to get a judicial resolution. We will see whose interpretation of the fourteenth amendment prevails. Meanwhile, beginning on January 2017 Congress and the president can pass laws expelling illegal aliens. Congress can change the rules of naturalization and tighten them up. That will have nothing to do with birth citizenship but it is a step in the right direction. Special attention should be paid to ending chain migration which is not protected by anybody's interpretation of the fourteenth amendment.
