That's why legislation is preferable to an order. Personally, a non legal professional in any sense, I look to the situation of natives after the amendments passage. Born here, on or off the reservation, not citizens. Until Congress acted. This tells me jurisdiction thereof refers to citizenship in a foreign nation/jurisdiction. The fact than employees of foreign nations children born here don't become citizens tells me the same thing. As much as I like discussing things like ex parte Crow Dog, which lead to the major crimes act of 1885 relative to the jurisdiction issue of sovereign tribes, the relationship to citizenship issues is beyond me. But from my common sense perspective the fact that Congress had to act in 1885 to claim criminal jurisdiction over those not subject to our nations jurisdiction, and had to act again in the 1920s to allow citizenship to those same individuals born in the US but not under our jurisdiction, tells me this is within the purvue of Contress, not a 14th amendment issue. None of which matters, the Supreme Court will end up deciding this one.
This will certainly end up in front of the courts. I just think an executive order like the one I think is being contemplated by the President is the only way to get it there. No one has standing to sue to have people who are treated as citizens to be declared non-citizens. However, if the President orders the State Department to stop issuing passports to the US-born children of illegal immigrants, then those people will certainly have standing to sue over the issue.
On the substantive issue, I tend to agree that the situation of Indians is very informative. The issue was the subject of a great deal of debate before the vote to propose it, at least in the Senate, and both the Senate and Supreme Court interpreted “subject to the jurisdiction” to exclude Indians not taxed.
Two problems still arise, though: First, even the Senate did not agree among themselves what the language meant with regard to the children of immigrants. Second, the way we categorize immigrants today is different than it was in 1868—the first real immigration restriction, the Chinese Exclusion Act, wasn’t enacted until 14 years later.
I think the line somewhere in the middle. At least some non-citizens are “subject to the jurisdiction,” otherwise Congress simply could have specified that one or both parents had to be citizens. Obviously, foreign ambassadors and delegations are not “subject to the jurisdiction.”
I would think that legal permanent residents are “subject to the jurisdiction” and their US-born children are citizens, and in fact the U.S. Supreme Court held exactly that in U.S. v. Wong Kim Ark in 1898. The Court in Wong Kim Ark also said that “subject to the jurisdiction” excluded only Indians, enemy aliens in hostile occupation, and diplomats, but I think that is what we call dicta—the Court repeatedly points out and relies on the fact that Wong’s parents were domiciled in the U.S.
So, in addition to the Indians, enemy aliens, and diplomats recognized in Wong Kim Ark, I think “subject to the jurisdiction” probably also excludes illegal aliens and non-immigrant legal aliens (i.e., tourist, student, and guest-worker visas). The children of illegal immigrants, or of women who travel here from China or Nigeria just to have their children here, are not citizens, in my view. The children of green card holders are citizens.
Unfortunately, I’ll be surprised if the Supreme Court agrees.