Yesterday, Arizona Republicans introduced HB-2561, legislation that would prevent the U.S.-born children of undocumented immigrants from acquiring citizenship at birth. However, the 14th Amendment explicitly states that anyone born in the U.S. and “subject to the jurisdiction thereof” is automatically a citizen. State Rep. John Kavanagh (R-AZ) — the chief sponsor of the bill — told a skeptical Greta Van Susteren last night that his bill merely seeks to define citizenship based on the “correct interpretation” of the 14th Amendment’s “subject to the jurisdiction” language. According to Kavanagh, it requires full allegiance to the United States:
KAVANAGH: We believe that that bestowing of citizenship, like a door prize, is based upon an erroneous interpretation of the 14th Amendment. And we have crafted two companion bills, the purpose of which is to trigger a judicial review, hopefully at the Supreme Court level, of the phrase in the 14th Amendment, “subject to the jurisdiction thereof,” which we believe is the reason for this erroneous interpretation that grants citizenship when it should not be granted.
VAN SUSTEREN: All right. Big problem that you have is — or at least — and I assume you’ll agree with me — that citizenship is a nationwide — it’s a USA-conferred thing — matter. And it is — you are — you are an American. You are part of the United States of America. What your bill is, is filed in the state of Arizona that doesn’t confer citizenship. How do you — even if you were to get your bill passed, how do you even think that it would have any muscle at all and not be usurped by the federal question here?
KAVANAGH: Well, our bill is not granting citizenship. Our bill is defining Arizona and U.S. citizenship based upon what we believe to be the correct interpretation of that phrase. And we make that assertion based upon written statements by the authors of the 14th Amendment and the first couple of Supreme Court decisions, Slaughterhouse and Elk, which defined “subject to the jurisdiction” as not being you can be arrested and tried in our jurisdiction, but that you owe sole allegiance to the U.S.
What Kavanagh doesn’t mention is that there were two cases which followed the Slaughter-House Cases and Elk v. Wilkins which essentially invalidate his position. In Plyler v. Doe, 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.”
Meanwhile, James Ho, a former Bush administration lawyer, has provided a pretty straightforward definition of “jurisdiction.” “The plain meaning of this language is clear,” wrote Ho. “A foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law.” Ho also argues that “[d]uring congressional debates, both proponents and opponents of the citizenship clause agreed with this interpretation of the 14th Amendment.”
In United States v. Wong Kim Ark, the Supreme Court ruled that Wong — the child of Chinese immigrants who were “subjects of the emperor of China” — was a U.S. citizen, regardless of the fact that his parents owed their allegiance to a foreign power. NYU Law professor Cristina Rodriguez explains, “The Court’s rejection in Wong Kim Ark of the notion that children born to parents ineligible for naturalization were not themselves the subject of the Citizenship Clause is a powerful rejection of the idea that one’s status depends on his parent’s status.” (Except for when a parent is employed in any diplomatic or official capacity under another foreign government).
Finally, the fact that Kavanagh and his cronies are purposefully going out of their way to instigate costly litigation on the taxpayer’s dime is deplorable. The state of Arizona has already spent over $1 million in less than six months to defend SB-1070. Kavanagh is now essentially asking Arizonans to dish out more money to fight for a bill which will likely lead nowhere and would create an ugly situation for the nation’s burgeoning Latino population in the unlikely event that it does.