Last week, before the state Farm Bureau Federation board of directors and an audience of farmers, Senate candidate Rand Paul (R-KY) once again declared that the Supreme Court should look into whether the children of undocumented immigrants qualify for citizenship under the 14th amendment. The 14th amendment clearly states that “[a]ll 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.” However, Paul argues that it’s unclear whether undocumented immigrants and their children are subject the jurisdiction of the U.S. government and its laws:
There’s never been a court case based on this. […] There’s never been a Supreme Court case decided on if you come here illegally are you under the jurisdiction of our country or under the jurisdiction of a foreign country still. […]
There is some question that these people came here illegally and their legal jurisdiction, their legal domicile is still in Mexico.
Paul recognized that there was one case, “Wong Ank [sic],” or U.S. v Wong Kim Ark, that touched on the issue. Yet, Paul dismissed the case because it was decided back in 1898 and dealt with the issue of whether a child of a legal immigrant could be considered a U.S. citizen. The truth is, the court didn’t make a distinction between “legal” and “illegal” immigrants and it’s not clear what category Wong’s parents fell into. What was made explicitly clear was that Wong’s parents were “subjects of the emperor of China” and he was not. Therefore, the court ruled that since Wong was born in the U.S. and subject to its jurisdiction, he was automatically a citizen, regardless of what jurisdiction his parents were under.
There is also a second case that Paul didn’t mention. The 1982 Plyer v. Doe decision established that unlawful status does not preclude one from being subject to U.S. laws. The court wrote, “the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.”
In practice, there are only a few exceptions (diplomats and their children) to the jurisdiction of the U.S. and there’s a good reason for the inclusivity of U.S. law. If undocumented immigrants and their children were only under the jurisdiction of their respective foreign governments, they could not be prosecuted and punished in the U.S. if they break our laws. It could even be argued that if undocumented immigrants aren’t under the jurisdiction of U.S. laws, they are by extension immune to immigration laws. Paul’s creative interpretation of the 14th amendment could create a situation in which, rather than being legally defined and treated as removable “illegal aliens,” undocumented immigrants could only be declared personae non gratae — a legal term under international law used to refer to “unwelcome” foreigners, usually diplomats, who are inherently under the jurisdiction of their home governments. Paul would probably have a problem with the fact that the persona non grata designation is completely discretionary and “[e]xpulsion is not the automatic consequence of the declaration.”