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Fox Legal Experts Divided on Immigration and Birthright Citizenship

Debates still rage on whether the children of illegal aliens are entitled to birthright citizenship, and Fox News now has two of their prominent legal personalities coming down on opposite sides.

Advocates for open borders and amnesty found support in Judge Andrew Napolitano’s argument this week in the Washington Times, where he argued that the Constitution does not empower the federal government to make immigration laws, and the Constitution guarantees a fundamental right to travel, under which illegal aliens may freely enter the United States and move within it.

Advocates for upholding the original meaning of the Fourteenth Amendment found support in Judge Jeanine Pirro, host of Fox News’s “Justice with Judge Jeanine.” On her Sept. 5 show, Pirro took the position that the Supreme Court has never held that the Fourteenth Amendment’s requires birthright citizenship for the children of illegal immigrants.

Judge Pirro is right; Judge Napolitano is wrong. The Citizenship Clause of the Fourteenth Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, shall be citizens of the United States and of the State wherein they reside.”

Breitbart News has published a full series on birthright citizenship, which all turns on the meaning of the Constitution’s phrase of being “subject to the jurisdiction” of the United States. Our first report explained how the Fourteenth Amendment—which Congress drafted in 1866—restated the Civil Rights Act of 1866, which explained that “subject to the jurisdiction” meant that the person was not a citizen of any foreign power and that the Supreme Court held in 1884 that courts should interpret the Fourteenth Amendment consistent with the Civil Rights Act.

Our second report explained that the Citizenship Clause is a the constitutional minimum for citizenship, not its outermost limit, and that Article I of the Constitution allows Congress to be however generous it wishes in granting citizenship through its Immigration and Nationality Act (INA) to foreigners who are not entitled to it by the Fourteenth Amendment.

One of our subsequent reports discussed the scholarship of top constitutional professors who showed that the framers of the Fourteenth Amendment explained during their congressional debates that the Citizenship Clause would not apply to citizens of foreign countries (such as illegal aliens), and the Supreme Court’s first two authoritative cases on the meaning of these provisions of the Fourteenth Amendment—from 1873 and 1884—formally adopted this meaning as the correct interpretation of the Citizenship Clause.

Finally, we reported on the 1898 case where the Court deviated from this original meaning said that the Citizenship Clause could reach foreign citizens, but limited its holding in that case to children born to permanent legal residents in this country, not illegal aliens.

Napolitano’s position has been completely rejected by the Supreme Court. The Court has always held that the federal government has plenary authority under Article I, Section 8, Clause 4 of the Constitution to make immigration laws: laws that determine who can enter this nation, and for foreigners, how long they can stay, under what conditions, and whether they can someday become citizens.

After Arizona v. United States, we reported how the Supreme Court in 2012 was divided on how immigration law works when the president does things without Congress, but that the Supreme Court reaffirmed a century of precedent that the Constitution vests all immigration powers in the federal government. There’s simply no legal debate on that question at all.

Likewise, Napolitano’s right-to-travel argument is wrong, for three separate reasons. First, it is a right to interstate travel only, not international travel to cross the U.S.-Mexico border. That’s why any American citizen can, for example, move freely from Indiana to Ohio without government permission. It does not—and never has—apply to entering or leaving this country.

Secondly, it is a right to travel from one state to another and settle in that new state to live there permanently. That is what the case Napolitano cites—the Supreme Court’s 1969 case Shapiro v. Thompson—was about: a person moving from Massachusetts to Connecticut to receive welfare benefits in her new state. If this right applied to illegal aliens, they would have the right not to just enter the United States, but also to permanently settle here and receive immediate welfare benefits.

Third, the Supreme Court has repeatedly held—as recently as its 1999 case Saenz v. Roe—that the right to travel is a right of American citizens only; it applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause (which immediately follows the Citizenship Clause), a provision that applies to U.S. citizens only. Natural rights—by contrast—apply to the states through the Fourteenth Amendment’s Due Process and Equal Protection Clauses. Foreigners have never had a constitutional right to free movement within this nation; only American citizens can do so.

By contrast, Judge Pirro was exactly correct when she explained that, in the Supreme Court’s 1898 case, it abandoned the original meaning of the Citizenship Clause. U.S. v. Wong Kim Ark was a case where the Court’s holding only applied to foreigners “domiciled” in the United States—a legal term meaning permanent lawful residents. The Court’s statements quoted to support birthright citizenship for illegal aliens is what is called obiter dicta, which is not part of the Court’s holding and thus is not binding precedent.

Pirro also noted that in 1923, Congress retroactively granted citizenship to American Indians, who, up to that point, had been denied citizenship ever since the Fourteenth Amendment’s ratification in 1868, thus proving that the Fourteenth Amendment never granted them citizenship. Pirro’s only mistake is saying that it appears that Congress was ignoring the Fourteenth Amendment.

That’s not entirely accurate. Instead, it shows that the Citizenship Clause is a floor, not a ceiling. As our previous report explained, the Fourteenth Amendment says that certain children born in this country must be granted citizenship, but it leaves Congress unfettered to grant citizenship to be more generous than that floor requires, and it can give citizenship to anyone else Congress wants. That’s what the current INA does, and it’s why Congress can narrow the INA back to its constitutional floor at any time to eliminate the issue of illegal aliens’ anchor babies receiving birthright citizenship.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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