The Citizenship Clause and Illegal Immigration
There is an article in today’s Los Angeles Times discussing a proposed ballot proposition that would deny various services to illegal immigrants and bar the issuance of birth certificates to children born here of illegal immigrant parents. Advocates of the proposition state that they want to use this as a vehicle to force the Supreme Court to address the issue of whether such children are citizens under Section One of the Fourteenth Amendment. This could also force a reconsideration of the Court’s decision in Plyler v. Doe, which held that denying public education to illegal immigrant children who were not citizens violated the Equal Protection Clause.
On the first point, I wrote an article last year explaining that the original understanding of the Fourteenth Amendment and the (albeit limited) case law supports the view that children born here to illegal immigrant parents are citizens. (I can’t access SSRN right now, otherwise I would attach a link.) As there is no Supreme Court holding to that effect, a proposition like this could, if enacted, require the attention of the Justices. It seems clear to me, though, that denying a birth certificate to any citizen due to his or her parentage would violate the Citizenship Clause and equal protection.
On the second point, I’m less certain what would happen. I’ve always thought of Plyler as a classic Justice Brennan opinion. He had five votes and the result is appealing, but the reasoning is weak. I doubt that the case would be overruled, but one could imagine a decision limiting its application to primary and secondary education and allowing states (when not preempted by a federal statute) to deny other benefits (e.g., a driver’s license) if they so desire.