Former Thomas Clerk: "[E]ffort To Rewrite U.S. Citizenship Law From State To State Is Unconstitutional -- And Curious"
In a January 5 Wall Street Journal op-ed  titled, "Birthright citizenship and the 14th Amendment," James C. Ho  wrote that efforts by state legislators "to rewrite U.S. citizenship law from state to state is unconstitutional -- and curious. Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution."
Ho is the former solicitor general of Texas, previously clerked for Justice Clarence Thomas, worked in the Bush administration, and served as chief counsel to Sen. John Cornyn (R-TX).
From Ho's op-ed:
A coalition of state legislators, motivated by concerns about illegal immigration, is expected to endorse state-level legislation today at the National Press Club in Washington, D.C., to deny the privileges of U.S citizenship to the U.S.-born children of undocumented persons.
This effort to rewrite U.S. citizenship law from state to state is unconstitutional--and curious. Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.
In the aftermath of the Civil War, members of the 39th Congress proposed amending the Constitution to reverse the Supreme Court's notorious 1857 Dred Scott v. Sandford ruling denying citizenship to slaves. The result is the first sentence of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
The plain meaning of this language is clear. A foreign national living in the United States is "subject to the jurisdiction thereof" because he is legally required to obey U.S. law.
Opponents of birthright citizenship say that they want nothing more than a chance to relitigate the meaning of the 14th Amendment. But if that is so, state legislation is a poor strategy.
Determining U.S. citizenship is the unique province of the federal government. It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.