lawfag here to weigh in on the plan to eliminate anchor babies - spolier - i am 1000% in support!
at issue is the 14th amendment to the constitution which 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 where they reside.”
The legal key to answer this is the meaning of the second requirement "…subject to the jurisdiction thereof…". This is not to sy that the first requirement (persons born or naturalized in the United States) is irrelevant. Far from it, as the understanding of this clause also bears weight in the legal interpretation of the amendment.
This latter point is straightforward - it was intended to add another basis for citizenship to the common law rule that existed prior to the 14th amendment - that is - that the citizenship of the parent (not their location upon birth) determined citizenship of the child. The purpose of this was to include slaves and Indians (who were not citizens at that time) in order to ensure that their children would be. That said, the 14th amendment also added the express condition that all such persons (children) would ALSO be "subject to the jurisdiction of the United Stated" in order to qualify.
There is certainly NO dispute about the language of the 14th amendment. There is NO dispute that the Congress has passed NO law authorizing anchor babies. And most importan, there is NO dispute that SCOTUS has never been asked to rule on the following question that 100% determines this matter:
"Does the 14th amendment's requirement that persons "subject to the jurisdiction of the United State" permit children of (illegal aliens and/or non-citizens with a residence permit) to automatically become US citizens?
I can say that when posed this way the question answers itself with common sense. So far as legal analysis, the issue is the interpretation of "subject to the jurisdiction of the US". As an interesting side note, prior to the 14th amendment, citizenship was defined and determined by STATE laws, not federal.
Congress could had from the beginning attempted to include a defined local birthright rule – whether due to place of birth or parentage – but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be their citizens.
The Fourteenth Amendment’s citizenship clause required owing complete allegiance only to the United States in advance rather than automatically bestowed by place of birth, i.e., only children born to parents who owed no foreign allegiance were to be citizens of the United States.
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.”
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
Jacob Howard already cited by other anons declared: [I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
So what happened? 1 of 2