On January 5, 2011, at the National Press Club in Washington, DC, a group called State Legislators for Legal Immigration held a press event announcing their intention to change meaning of the citizenship clause of the 14th Amendment, which has granted citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" ever since it was ratified in 1868. The group wants to force a reinterpretation of the amendment to prevent children of undocumented immigrants from obtaining citizenship, thus removing (in SLLI's view) an incentive for people to cross the border illegally.
Their primary weapon in this crusade is a model bill that says children must have at least one parent who is a U.S. citizen (or resident alien) in order to be eligible for state citizenship. The bill, which runs contrary to over 100 years of legal precedent, was designed so that legislators could take it back to their states, work to get it passed, and then get sued with the hope that the case makes it all the way to a Supreme Court which would then overturn that precedent.
The strategy, the legal reasoning, and the model legislation were devised by the Immigration Reform Law Institute (IRLI), the legal arm of the anti-immigrant Federation for American Immigration Reform (FAIR). Specifically, they are the brainchildren of Kris Kobach, counsel for IRLI and the Kansas secretary of state.
IRLI is not the only conservative organization pushing model legislation on this issue. A similar model bill approved by the American Legislative Exchange Council (ALEC) in 2008 provides for state legislatures to call on Congress to "enact legislation clarifying the Fourteenth Amendment of the United States Constitution as denying citizenship status to children of illegal aliens."
Both ALEC and IRLI draft and disseminate model legislation to state legislatures to promote conservative interests. IRLI defines their mission as being "dedicated to advocating for the rights and interests of United States citizens in immigration-related matters," while ALEC, backed by a range of corporate giants, tailors model bills for a broad range of (mainly economic) issues. ALEC's 2008 bill to "clarify" the 14th Amendment came out of their Public Safety and Elections task force, which was recently scuttled after drawing fire for promoting controversial "Stand Your Ground" gun laws. Though the task force is now defunct, its former chairman told Media Matters that immigration policy is "certainly still very much on the table."
In his role with IRLI, Kobach has been involved in some of the most controversial immigration battles of the past few years, including the fight over Arizona's SB 1070, which Kobach helped to draft (with reported assistance from ALEC). Shortly after IRLI's 14th Amendment model bill was unveiled, he talked to National Review and made clear the strategy behind it:
If even one state passes the law that denies state citizenship to the children of illegal immigrants, there is likely to be a lawsuit. "Hopefully, it would eventually present the issue to the Supreme Court," says Kobach, "so that we would have an authoritative statement from the court on whether 'subject to the jurisdiction thereof' -- whether those words have any meaning or not."
It's that phrase -- "subject to the jurisdiction thereof" -- that forms the thin reed upon which opponents of birthright citizenship stand. The 14th Amendment states: "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 wherein they reside." The IRLI model bill defines the phrase thus:
For the purposes of this statute, subject to the jurisdiction of the United States has the meaning that it bears in Section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this statute, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.
IRLI, ALEC, and their supporters want the Supreme Court to revoke the principle of birthright citizenship, which has been the law of the land for 150 years, is supported by numerous Supreme Court and lower court rulings, and, per legal scholars, was the intention of the framers of the amendment. (The longstanding interpretation of "subject to the jurisdiction thereof" has been the exclusion of children born to those actively serving a foreign government: diplomats, soldiers, etc.)
Legislation identical to, or very similar to, the IRLI bill has popped up in Arizona, Montana, Oklahoma, New Jersey, West Virginia, Pennsylvania, and Mississippi. In each state, the bills failed to make it out of the legislature -- most died in committee. The ALEC bill has been introduced in states like Arizona and Tennessee.
That an outfit like IRLI, which focuses exclusively on immigration, would draft and promote legislation like this isn't surprising. For ALEC, however, which tends to focus more on business interests, legislation restricting immigration and seeking to redefine citizenship is outside the norm.