14th Amendment
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.

This is the clause of the 14th Amendment which Texas has introduced new legislation in order to combat. The Bill HB 28, is aimed at denying State benefits to children born in the state to parents in the Country illegally. The text of the bill states:

Sec. 2352.003. ELIGIBILITY. An individual to whom this chapter applies is not entitled to and may not receive any benefit provided by this state or a political subdivision of this state, including:

1. a grant, contract, loan, professional license, or commercial license provided by an agency of this state or a political subdivision of this state or by appropriated funds of this state or a political subdivision of this state;
2. employment by this state or a political subdivision of this state;
3. a retirement payment or other benefit received on account of the status of the individual as a former employee or officer of this state or a political subdivision of this state;
4. public assistance benefits, including welfare payments, food stamps, or food assistance from this state or a political subdivision of this state;
5. health care or public assistance health benefits;
6. disability benefits or assistance;
7. public housing or public housing assistance;
8. instruction in primary or secondary education;
9. instruction from a public institution of higher education; and
10. an unemployment benefit.

The Bill was introduced with the obvious purpose of saving Texas taxpayers the burden of supporting children born in this country by parents who came here illegally. Unfortunately for the State of Texas, even if this bill is passed it will have no legal standing.

This piece of legislation is in direct conflict with the 14th Amendment which states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. By passing this bill, Texas would be abridging the privileges of a person born in this country and therefore a citizen.

Due to the unfortunate wording and lack of foresight on behalf of the Texas Legislator’s who drafted the bill; the right to challenge the citizenship status of children born to illegal parents will most likely be denied in Court when this bill is inevitably challenged. One simple sentence added to the text of this bill could have, and can still, save it from certain doom.

The 14th Amendment does indeed state that all persons born in the United States are citizens, however it also stipulates those persons must be under the jurisdiction of the United States as well. In order to pass this bill and have it stand up to a Constitutional challenge, the legislature would need to amend it to include a clause which challenges the United States jurisdiction over the child. Granted, I am not a lawyer (nor even a college graduate), however from my experience reading Supreme Court ruling, I believe this to be true.

By challenging the United States jurisdiction over the child Texas could have a winnable case which would pave the way for other states to institute similar legislation which is sorely needed in this Country. There is sufficient case law to use as precedent in my opinion for this to be done.

In United States v. Wong Kim Ark (1898) the decision quotes the Slaughterhouse cases:

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:

The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (emphasis mine)

Aside from the above referenced exemptions, there are also exemptions for “Indians not taxed”. I don’t believe it would be very difficult to convince a panel of judges that an illegal alien who is not taxed should fall under the same criteria as an American Indian who is not taxed with regards to citizenship.

Win lose or draw, I applaud the legislature for proposing such a bill. It is nice to see a local Government do what is best for its citizens rather than caving to the politically correct crowd. If only our Federal Government would do the same.

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Fourteenth Amendment, Supreme Court