How is 14th amendment applicable to tourists and illegal immigrants?

Question

14th amendment states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...".

Given this wording how is it that foreign diplomats' children born in United States do not have birthright to US citizenship because they are not "subject to the jurisdiction thereof" and children of tourists and illegal immigrants do have the birthright to US citizenship?

In other words, how is it that these two categories are "subject to the jurisdiction thereof" and therefore their children have the right to US citizenship by birth?

Edit: As mentioned below, according to United States v. Wong Kim Ark, Ark was granted citizenship by birth although his parents were foreign nationals and this is cited by many as a precedent for birthright citizenship for tourists and illegal immigrants. However, according to the same article, Ark's parents "were legally domiciled and resident" in United States at the time of his birth and tourists and illegal immigrants are not so can this decision really be used as legal precedent for birthright citizenship for tourists and illegal immigrants?

Answer 1

[C]an this decision really be used as legal precedent for birthright citizenship for tourists and illegal immigrants?

Yes. If the case did not depend on the fact that they were lawfully resident in the US, then it would apply to those who are not lawfully present in the US. For the case to apply to some people but not others, there must be a distinguishing difference that is relevant to the analysis of the case. The question then is whether lawful residence is a distinguishing difference here, and it seems that no court has ruled on the question.

Referring to current events, it would be possible for the executive branch to assert that the 14th amendment does not grant citizenship to one born in the US of parents who were not lawfully present. This would end up in court. For example, such a person could sue to compel the government to issue a passport, or, if the government sought to deport such a person, the person could assert US citizenship in deportation proceedings. At that point, the court would have to rule on the question, whereupon it would almost certainly rule that the 14th amendment does grant such citizenship.

See, for example, Plyler v. Doe, in which the court ruled that illegal immigrants in a state are within its jurisdiction for the purpose of the equal protection clause. It would be odd indeed for the court to rule that the same word means something different in the previous sentence. Furthermore, in a footnote, the court writes

[W]e have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ."

...

[N]o plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

You ask:

[H]ow is it that foreign diplomats' children born in United States do not have birthright to US citizenship because they are not "subject to the jurisdiction thereof" and children of tourists and illegal immigrants do have the birthright to US citizenship?

Consider what happens when an illegal immigrant commits a crime in the territory of a US state: the person is subject to trial and punishment in the state's criminal justice system. A foreign diplomat who commits a crime, on the other hand, or indeed the child or other family member of a foreign diplomat, is immune from prosecution. That is what distinguishes diplomats from illegal aliens such that the first sentence of the 14th amendment applies to the latter, but not the former.

Answer 2

Basically,

A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. eCFR — Code of Federal Regulations

because they are not “born . . . subject to the jurisdiction of the United States.” But according to the US Citizenship and Immigration Service

This person may, however, be considered a permanent resident at birth and able to receive a green card through creation of record. Green Card for a Person Born in the United States to a Foreign Diplomat | USCIS.

As for children of tourists and illegal immigrants (sometimes known as Anchor babies - Wikipedia), they are subject to the jurisdiction of the United States because they are here. As the saying goes - "possession is 9/10 of the law" - being in the US - on a tourist visa or as undocumented - is being subject to the jurisdiction of the US.

The Supreme Court of the United States affirmed in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that the Fourteenth Amendment guarantees citizenship for nearly all individuals born in the United States, provided that their parents are foreign citizens, have permanent domicile status in the United States, and are engaging in business in the United States except performing in a diplomatic or official capacity of a foreign power. United States v. Wong Kim Ark - Wikipedia

Answer 3

See the authorities cited in this answer: What is the meaning of “and subject to the jurisdiction thereof” in the 14th amendment?

A foreign diplomat (or a member of the family of a diplomat) is not subject to arrest for violations of US law, and so is not "subject to the jurisdiction" of the United States. Nor does a diplomat pay US taxes, which is additional evidence of the diplomat's exclusion from the jurisdiction, although tax exemption can come without such exclusion. A person who entered the country illegally is subject to arrest if accused of crime, and does pay taxes. Such a person is therefore "subject to the jurisdiction" of the United States, and the child of such a person, if born in the US, is a citizen by birth. That is not subject to change by executive order, nor even by an Act of Congress -- it would take a constitutional amendment.

The members of the Congress in the 1860s who drafted the language of the 14th made their intent clear, it was to make everyone born in the US have citizenship except the two traditional narrow cases of diplomats and invading armies, plus the US-specific case of members of Native American tribes.

Note that the US had from its start as a nation, included all persons born here as citizens, with the traditional common-law exclusions, plus an exclusion of negro slaves. The 14th amendment was intended (among other things) to reverse this latter exclusion, and particularly to reverse the pre-civil-war Dred Scott decision, which had held that even in a "free" state, a Negro who had been a slave could not become a citizen.

Answer 4

United States v. Wong Kim Ark is definitely NOT precedent with respect to whether the 14th Amendment applies to children of illegal aliens or tourists giving birth in the USA.

The answer to your specific question is still up in the air as it has never been addressed by the Supreme Court. In their decision the Supreme Court will undoubtedly cite United States v. Wong Kim Ark and include that decision in their analysis, but since the facts are substantially different United States v. Wong Kim Ark will not be precedent, the new decision of the Supreme Court will be.

The 14th Amendment reads:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If a tourist visits the USA for 6 months to give birth a baby the parents are not required to register for the Selective Service System or pay taxes on their global income for the rest of their lives and is therefor not "subject" to USA law. But legally speaking the meaning of the word "subject" is very complicated. The eventual meaning of the 14th Amendment when it comes to birth rights for illegal aliens and tourists remains up to the Supreme Court to decide.

United States v. Wong Kim Ark addressed the question of citizenship of permanent residents. Unlike an illegal alien, permanent residents are subject to taxation on their global income.

In United States v. Wong Kim Ark Justice Jay did have quite a bit to say about the meaning of the word "Subject" and allegiance. Justice Jay cited Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830):

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.

Notice in the two situations you question, for illegal aliens and for tourists, the question is whether the "parents are resident there under". Both sides have convincing arguments.

In United States v. Wong Kim Ark Justice Jay's decision reads:

Whether any act of himself or of his parents during his minority could have the same effect is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about seventeen years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States, and that said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.

Justice Jay's decision specifically leaves open the possibility that acts of his parents or any questions with respect to residency or domicile in the USA might lead to a different decision. The facts in that case are substantially different from the facts in either situation you posed in your question so United States v. Wong Kim Ark is not precedent.

Many explanations on StackExcange cite Plyler v. Doe which did not address citizenship and instead dealt with Equal Protection of the laws. Plyler v. Doe addressed the meaning of "within its jurisdiction" but did not directly address the meaning of "subject to the jurisdiction". The meaning of the word "subject" has nothing to do with the meaning of the word "within" and Pyler v. Doe has nothing to do with the question at hand.

Answer 5

Some answers here, including one by "charlie" suggest that the phrase "within its jurisdiction" which appears later in the 14th Amendment (in the Equal Protection clause) and which was at issue in Plyler v. Doe 457 U.S. 202 might have a significantly different meaning than the phrase "subject to the jurisdiction". which appears in the first sentence of the 14th Amendment, and which controls the citizenship issue.

In United States v. Wong Kim Ark, at p687, that Court very specifically addressed this point, saying:

The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."

Let me emphasize that last sentence:

It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."

It seems to me that this makes it clear that the two phrases are simply different ways of saying the same thing, at least as far as the court in Wong Kim Ark held, and therefore the decision in Plyler v. Doe, that the children of those present in this country without lawful authority nonetheless had rights to education also is precedant that such children are citizens if born in the US.

The Plyer decision contains the statement that:

Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U.S. 67, 77 (1976)

It goes on to say that:

In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction."

In view of the holding in Wong Kim Ark that

It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction"

this seems pretty clearly to hold that such children are indeed "subject to the jurisdiction" of the United States, and so are citizens when born within the physical limits of the US.

Of course, all Supreme Court decisions are subject to change if the current court sees fit, but this seems a very large and unlikely change for a Court to make.

Answer 6

You ask whether the Wong Kim Ark case really constitutes precedent for citizenship for US-born children of unauthorized aliens. Some commentators argue that it doesn't, because Wong Kim Ark's parents were legal immigrants. This argument is rejected by the majority of constitutional scholars. To see why, you have to read the opinion of the Court in the Wong Kim Ark decision. I quote (reference):

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

1. This paragraph clearly applies to the US-born children of unauthorized alien residents just as much as the US-born children of legal immigrants.
2. Read in context, this paragraph is part of the ratio decidendi (the rationale for the Court's decision in the case), and not obiter dictum. Therefore, it is controlling precedent.

The combination of points 1 and 2 above imply that the Wong Kim Ark decision did, in fact, create a precedent that says that the US-born children of unauthorized alien residents are US citizens.