The Citizenship Clause of the Fourteenth 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.” Opponents argue that “subject to the jurisdiction thereof” limits this meaning and excludes the children of illegal aliens.
The Supreme Court indicated in United States v. Wong Kim Ark, 169 U.S. 649 (1898) that this language covers the children of illegal aliens. However, critics argue that this language is at best dicta and unclear. Some members have introduced legislation to mandate that such children are not “subject to the jurisdiction” of the United States to deny citizenship.
To accomplish such a change, Hunter would have to pass sweeping new legislation and ultimately face a showdown with the Court over the language in the 14th Amendment. Such a challenge would likely focus on statements before ratification of the 14th Amendment that indicated a narrower view of the language. The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”
Of course the recognition of birth right citizens is different from deporting already recognized citizens. Even if Congress changed the current law, Hunter suggested that he would deport existing citizens. That would raise a host of constitutional problems in the retroactive stripping of citizenship since you cannot simply deport a U.S. citizens because they are too costly.
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