We’ve all heard the stats: currently, only the United States grants birthright citizenship to illegal aliens and 8% of babies born in the US are so-called “anchor babies” born of illegal aliens. In and of itself, this doesn’t constitute a crisis, but, for many of us, it does illustrate how far we’ve strayed from the Constitution.
Like all babies, “anchor babies” too are sweet and cuddly, and deserving of mother’s love and society’s protection. But automatically conferring citizenship on babies of illegal aliens is an ideologically-motivated perversion not only of internationally accepted legal norms, but, much more importantly, of the Constitution itself.

By nimbly mischaracterizing the motives of birthright citizenship opponents, many in the media and blogosphere—to include attorneys who should know better-- have irresponsibly misrepresented the framers’ intent and have reduced the level of discourse on this legitimate constitutional issue to that of ad hominem, race-baiting, specious legal citations, contrived legal justifications, and mindless pandering. Shamelessly seeking ideological and political supremacy, to these people the Constitution and the rule of law mean absolutely nothing. And for a nation which once prided itself as being a “nation of laws”, that is inexcusable.

During an interview with Mr. Trump last night, what annoyed me greatly was Bill O'Reilly's characteristically bombastic--and wholly erroneous--claim that "the 14th Amendment says that any person born on US soil is a US Citizen. Period".  Poppycock! He couldn't have carefully read the amendment at all to reach this specious conclusion. And the fact that even Judge Napolitano, a Libertarian jurist, a few days earlier asserted this revisionist and ignorant view is nothing short of bewildering and troubling.  But, this does underscore just how flawed and fallible jurists and seemingly bright, well-informed talking heads really are.

That said, for my own edification I decided to take the time to again review the actual words of the 14th’s framers, pertinent case law and the opinions of jurists and legal scholars on both sides of the question to determine the truth in this matter.

Here are my findings and conclusions:

First, while researching pertinent materials, I soon discovered that understanding the clear intent and meaning of the 14th Amendment was much simpler than anticipated. In fact, the meaning of the 14th was surprisingly straightforward. Lesson learned: if one simply abandons one’s ideological blinders for a moment and commit to an honest effort to objectively review a constitutional issue, clarity is nearly always one’s reward.

It also became apparent that from a strictly Constitutional standpoint, and despite many assertions to the contrary from both the left and the right, a constitutional amendment is NOT needed to deny US Citizenship to anchor babies of illegal entrants. In short, I was unable to find ANY convincing constitutional evidence that so-called anchor babies can legitimately and automatically acquire U.S citizenship. Thus, a simple act of Congress--and most certainly NOT an amendment to the Constitution—to clarify the original intent and meaning of the 14th Amendment is all that is really needed to resolve this issue once and for all.

Toward this end, introduced on April 2nd, 2009, and co-sponsored by 93 congressmen, inclusive of one lonely Democratic supporter, Mississippi’s Gene Taylor, HR 1868 (Birthright Citizenship Act of 2009) intended to amend section 301 of the Immigration and Nationality Act to provide that a person born in the US is “subject to the jurisdiction” of the US for citizenship purposes if the person is born in the US of parents, one of whom is: 1) a US citizen or national; 2) a lawful permanent resident alien who resides in the US; or 3) an alien performing military service in the US Armed Forces.” And if one simply reviews the original meaning of the 14th Amendment one can easily see that there was absolutely nothing at all revolutionary about this bill's language. In any event, the bill failed.

Intended to protect the rights of emancipated Negroes, the 14th Amendment specifically provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

And as I very quickly learned, of central importance in this statement is the phrase “subject to the jurisdiction thereof”, something birthright citizenship proponents have consistently and very conveniently ignored.

To begin, Sen. Jacob Howard of Michigan, co-author of the 14th Amendment, expressly asserted that “this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” And it is in this plain-spoken construction birthright proponents somehow discover ambiguity or a totally different meaning. Amazing!
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Under Section 1992 of the US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”

In 1873, the US Atty Gen ruled the word “jurisdiction” under the Fourteenth Amendment to mean the absolute and complete jurisdiction. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the US but only to a limited extent. Political and military rights do not pertain to them.”

Sen. Trumbell noted during the drafting of the 14th Amendment that it was the amendment’s goal to “make citizens of everybody born in the US who owe allegiance to the US,” and if “the negro or white man belonged to a foreign government he would not be a citizen.”

On March 1, 1866, Rep. James Wilson of Iowa, House Judiciary Committee, added that “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to conclude that every person born in the US is a natural-born citizen of such States, except that of children born on our soil (jus soli) to temporary sojourners or representatives of foreign governments.” This statement served to nicely clarify Sen. Howard’s construction above.

John Bingham, framer of the 14th Amendment’s first section, stated that Sec. 1992 of the Revised Statutes meant “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.”

And if we reach way back to our founders in search of a definition of citizens of a foreign power, Thomas Jefferson said “Aliens are the subjects of a foreign power.”

To a man, among the framers the premise behind “within the jurisdiction thereof” was that all children born to parents who owed no foreign allegiance were to be citizens of the US; thus, not only must a child be born on US soil (jus soli) but born of parents whose complete allegiance is to the US.

Subsequently, Sen. Howard further explained that “only thru expatriation, which could be accomplished thru law alone, and not thru any immigrant acting on his own outside the law—and certainly not by any act of birth alone—could an alien become a citizen.” This, of course, would mean that the alien/sojourner would need to affirmatively renounce his allegiance to his/her country of origin before s/he could be considered completely within the jurisdiction of the US.

Sen. Howard also stated the following: “…the word 'jurisdiction', as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, the executive, or the judiciary; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the US now.” In effect, he was saying that an alien may, by treaty arrangements with his country of origin, avail himself of the protection of the US, much as sojourning US citizens in the alien’s country of origin would avail themselves of that country’s protection, but that an alien's physical presence in the US alone would not render him/her under the "complete jurisdiction" of the US. Simple enough.

The rationale behind not granting automatic citizenship can be easily illustrated by the fact that Indians could not be subject to the jurisdiction of the US because the US dealt with them through treaties. By logical extension, aliens sojourning in the US are extended privileges and protections by virtue of treaties in force with their countries of origin, much as American citizens are granted similar rights and privileges—but not citizenship--when sojourning in those countries. Logically, therefore, only if an alien voluntarily and affirmatively renounces his citizenship and expresses an intent to swear allegiance to the US may the alien, through operation of law (a formal naturalization process) be granted US citizenship. Thus, in a nutshell, since neither children of tourists/sojourners nor of diplomats born in the US can be US citizens, children of illegal entrants cannot be lawfully granted the privilege of US citizenship.

In 1867, George Yeaman, American Minister to Denmark, in his highly respected treatise on allegiance and citizenship and for whom the framers had great respect, asserted that “the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” Thus, dual citizenship was also a no-no. (Take note, BHO.)

P. A. Madison, a modern day master of constitutional analysis, points out that “since illegal aliens are unlawfully in the US, their native country has a proper and primary claim of allegiance on the child. Thus, the completeness of their allegiance to the US is impaired, which therefore precludes automatic citizenship.” Slam dunk obvious, I’d say.

Also, Rep. Aaron Sargent, a representative from California during the Naturalization Act of 1870 debates, said the 14th Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. Significantly, none of his contemporaries disputed that assertion.

Adding to this mix, here is a little case law since the 14th’s ratification.

In the Slaughterhouse Cases(1873), the Supreme Court observed that the 14th Amendment overturned the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction, citizens of the US; the ruling went on to point out “that [the 14th Amendment’s] main purpose was to establish the citizenship of the Negro” and that “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", thus reinforcing Sen. Howard’s construction above. So, since they cannot be subject to US jurisdiction, children of citizens of foreign sovereignties and children of foreign ministers/consuls/ambassadors cannot be lawfully considered US Citizens. Makes perfect sense.

Then, in Elk v Wilkins (1884), the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians—because they were subject to tribal jurisdiction, not U.S. jurisdiction. In effect, the court essentially stated that the status of the parents determines the citizenship of the childand not merely the fortuitous birth of that child on American soil. (Note: not until the Citizens Act of 1924 was U S citizenship granted to American Indians. As with many whimsical court rulings over the years, I was unable to understand the legal grounding for this reversal. Thus, it would seem that judicial arbitrariness is not an affliction peculiar to modern day American courts alone.)

In US v Wong Kim Ark (1889), the courts held that children born in the US of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the US and are carrying on business in the US, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of US territory, become a citizen of the US at the time of birth. As expressed in the minority opinion, this decision violated the 14th Amendment. But, in any case, how many new illegal aliens have permanent domiciles in the US and how many of them are carrying on business in the US at the moment of their child's birth on US soil? I suspect precious few. (Note too that the parents of Wong Kim Ark were in the US legally. They were not illegal entrants.)

In Steel v Citizens for a Better Environment (1998), the court stated that “jurisdiction is a word of many, too many, meanings.” Au contraire! As can be clearly seen above, Sen. Trumbell and, yes, Sen. Howard, 14th Amendment co-authors, had long ago provided an unambiguous definition by declaring that “the provision is, that all persons born in the United States, and ‘subject to the jurisdiction thereof’’, are citizens. That means ‘subject to the complete jurisdiction thereof. What do we mean by ‘complete jurisdiction thereof'? Not owing allegiance to anybody else. That is what it means.” And this from the framers' themselves! (Clearly, majority jurists in the Steel v Citizens court didn’t bother to research the framers’ clear intent and meaning. And one must wonder if a neophyte, such as I, can easily deduce original meaning, why can't trained jurists? Could it be incompetence or do political agendas get in the way of constitutional law?)

Despite the clear meaning and intent of the 14th's framers, we fast forward to the somewhat enigmatic ruling in US ex rel. Hintopoulis v Shaughnessy (1982), which some bloggers and others have used to justify birthright citizenship. In that case, and out of whole cloth, somewhere in the ruling it asserted, almost unconsciously/unwittingly, that although a child born in the US to two illegal aliens was a US Citizen (????) that, nonetheless, “suspending the alien parents’ deportation based upon “the accident of birth in the US of their son would be to deprive others, who are patiently awaiting visas…” Thus, since the glancing allusion to the legality of birthright citizenship, though gratuitous—and erroneous—appeared in the text of this suspension of deportation decision, birthright proponents often blithely and excitedly cite this case to substantiate the legality of birthright citizenship. Grabbing at straws, I'd say.

Then, true to activist form, in Plyler v Doe (1982) the court, apparently without access to or proper reliance on the 14th framers’ erudition and written words, mysteriously ruled 5-4 that there is “no plausible distinction” with respect to “jurisdiction” between resident aliens who entered the country lawfully and those resident aliens who entered unlawfully. Wowee! Clearly a yawning violation of the framers’ clear meaning and intent. Seems judicial activism was as alive and well in 1982 as it is today.

To me, these two rulings which capriciously and arrogantly turned Thomas Jefferson and the framers of the 14th on their heads are clearly unlawful at worst, convenient contrivances at best.

When I explained all this on-line to an attorney who is also a strong proponent of birthright citizenship, this was her reply: “I disagree with your interpretation of the phrase ‘subject to the jurisdiction thereof'. The first rule of statutory construction is that we don’t look to the drafters’ intent if the words are plain and unambiguous…If the drafters meant to include some allegiance test, they would have. They didn’t.” That sort of revisionism, gobbledegook, willful ignorance and dishonesty is, folks, what this country is up against. My rejoinder was civil, but to the point: “It wasn’t MY lowly interpretation. It was the framers’ interpretation. But, ignore original intent and meaning? A living constitution is like having no constitution at all. We can merely make it up as we go along and continue to hand-off an increasingly irrelevant document to the next generation. While I sincerely hope this isn’t what you have in mind, at this juncture I can see there’s really nothing more to discuss with you on this or any other constitutional issues. How very sad.”

Finally, based upon what I now understand, we must be faithful to the 14th Amendment framers’ clear intent and meaning—surely a tall order with so many political activists, globalists and social engineers infesting our courts these days. In the case of "birthright citizenship", Congress is constitutionally empowered to re-assert the original meaning of the the 14th Amendment, and that's precisely what it should do.

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And just to add a little more angst to this subject, this:

Our history books blithely assert that the 14th was "ratified" in 1868. In actuality, it was never constitutionally ratified at all. In March 1967, Congress, controlled by the Radical Republicans, used the Reconstruction Act to extort ratification. Ratification of the 14th, Congress declared,must precede readmission of the southern states to the union. So, with a gun to their heads, the vanquished southern states were compelled to acquiesce. Add to this the fact that Nevada and W. Virginia, which voted in favor of the the 14th, were admitted to the union during the war and had not even been constitutionally admitted as states! Still other states actually rescinded their vote for ratification. The whole process stunk to high heaven and was marked by a nightmare of injustices and blatant disregard for the Rule of Law.

Look it up. Lincoln and the Republican Party during this period were shamelessly tyrannical. During this awful period of lawlessness, the Constitution was, for all practical purposes, null and void and remained so until. Pres. Grover Cleveland attempted to undo the damage wrought by Radical Republican perfidy. Bet you were never taught this in your history class. Nor was I.

What it means, Oren, is that Lincoln's view that states could not legally secede was a purely political contrivance, but that to get what he wanted at any given time he and his radical Republicans would permit southern "states" to re-enter the union as States.

He treated the CSA as both a gaggle of rebelling territories on one hand, and, in the case of the blockade, as a foreign government on the other. Following the war, the CSA was, in fact, an occupied country, but Abe, for self-serving political reasons, couldn't call it what it actually was, this per accepted standards of international law and our own constitutional principles.

Secession, of course, is a well-established principle of the republic. Most northern newspapers, as well as the general population in the north and south at that time, well-understood that. (The Revolutionary War was, in fact, our first War of Secession.)When the papers became too vocal in support of the principle of "voluntary union and secession", they were shut down and arrested. Many thousands of northerners--politicians, jurists, lawyers, newspapermen, writers, anyone--were summarily arrested and imprisoned without trial for voicing these views. It was a very dark hour in our history.

For a number of years following cessation of hostilities, the southern States were really military districts administered by DC and the Republican Party to be used and abused as DC and Republican Party loyalists saw fit. This was a terribly shameful period in our history, and a period too many "historians" wish to ignore. Northern victory ushered in unchecked centralized authority on steroids, a Whig dream come true which was very much at odds with Jefferson's and our other Founders' principles of  governance.

Finally, the CSA constituted a free and independent constitutional republic when it was invaded by Lincoln. But, "honest Abe" couldn't call it an invasion lest he expose his perfidy. No, to him they were territories in rebellion or rebellious states--but NOT what they actually were-- a confederated union of sovereign states. Abe was, in short, a self-contradicting tyrant. Fortunately, for Abe it is the victor in war who writes the history and for whom the people build commemorative monuments.

Only after years of reading first-hand accounts and honest, objective historians was I made fully aware of just how dark an hour this period in our history really was. Much has already been written on this subject by persons of greater skill than I, but I do plan to continue my own research in this matter and, perhaps, write another book.

I very comprehensively answered your "simple, salient, and prescient(?)" question, Oren.

Are there some time frame anomalies?  Lincoln was assassinated in 1865. Judge Napolitano takes Lincoln apart here https://www.youtube.com/watch?v=-zy9D-0IkQM but doesn't get to this issue.

http://www.originalintent.org/edu/14thamend.php

This link leads to a good explanation of the 14th Amendment. Its long but well worth its review.

What a great article. I got through half of it and will save it for future study. Awesome and encouraging research.

I side with Levin - the 14th does NOT allow illegal parents to give birth and poof that child is an American Citizen.  Nope.

The 14th Amendment sought to make citizens of slaves & more specifically successive generations of slaves born in the USA having no other country of allegiance.

The slave parents were allowed into the USA "legally" . In spite of the horrid nature of slavery, it was for a time a legal enterprise. But the slaves allowed into the USA legally were not granted citizenship, although they were counted as citizens in the census in the ratio of three "persons" for every five present. The infamous 3/5th rule.

Even though the southern slave holding states wanted to count slaves as whole persons entirely, and the northern non slave states did not want them counted at all.

Children of several generations of slaves had no country to which they could be repatriated. Therefore they existed under the sole jurisdiction of the United States.

There is quite a difference between these children of slaves & anchor babies.
Slave children were here legally.
Slave children had no nation of allegiance ( other than the US).

So the 14th Amendment NEVER should have been construed to grant citizenship to children of foreign persons on US soil.

Our Constitution grants specifically power to Congress to establish US immigration law. Therefore a simple act (bill) of Congress can clarify and establish that children of foreign parents while in the USA legally or illegally, documented or in violation of US immigration law , will not be granted citizenship by birth.

They are subject to a foreign sovereignty. Therefore cannot be granted US citizens.

That seems to be pretty clear.

That's a great analysis of the intent of the writers of the 14th Amendment. But as you state, it's been construed in a different manner.

The reason is quite simple. Politicians and lawyers if they can due to a lack of constraint by the wording of a law, amendment, or even the Constitution's body will take an eisegetical approach to interpretation and do what they want. Thus the intentional misconstruing of the opening words of the 14th Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof..." 

I believe that while Congress has the power and duty to clear up the problem, they won't do so for political and economic reasons.Thus it falls to the people through their States to do as Jefferson said and to once again restrain the federal government with the chains of the Constitution, and if necessary do so as he said by watering the Tree of Liberty.

The only way for them to do so is to propose an amendment through the Article V Convention process. It's been done before with Congress realizing it's potential loss of power and adopting the proposals as their own.

As long as we have libtards in the justice system, they will interpret the way king O want them to interpret.  With each anchor baby comes a host of family members that we have to support   Americans are not getting the freebies that they are getting and therefore not having 6 kids -- they are too busy working to support them.  I know there are over 50 million illegals currently in this country and I know that more than half are on government assistance.  There is a paycheck associated with every baby they have, an incentive for them to make it a full time job.   Cannot speak for all of them, there are more than 11 million just in Florida, those people never worked a day in their lives !    Should take some photos of their shopping carts, their painted nails, their obamaphones.  Electric assistance, food assistance, rent assistance, dental, medical and refuse to learn English !   

First... The US CONSTITUTION DOES NOT EXTEND ITS JURISDICTION TO ILLEGAL ALIENS... a clear reading of the PREAMBLE defines for whom the US Constitution applies... Read the Preamble below and pay attention to who the US Constitution applies:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

We the People of the United States... not Mexico, not China, secure the Blessings of Liberty to OURSELVES and our POSTERITY.. not Mexico not Chines... do ordain and establish this Constitution for teh United States of America... not Mexico or China... Our Constitution is clearly limited to AMERICANS... it's protections are not extended to ILLEGAL ALIENS... or any other foreignors who enter the US illegally. .

The 14th Amendment as debated in Congress was never intended to extend US Citizenship to illegal aliens born on our soil... the Progressives, Communist, Globalist, Deep State and corrupt courts have ignored the original intent of Congress when passing the 14th Amendment or for that matter extending the protections of the US Constitution to criminals foreignors who enter the country illegally..

Illegal Aliens are not entitled to eny of our Constitutional protections... except those extended to them by Statutory law...  Birthright citizenship is a construct of those seeking to overthrow our Republic as our forefather's framed it under the Constitution... PERIOD.  Birthright Citizenship is illegal and anyone claiming citizenship under it must surrender such claim..  or new law passed, to grant them amnesty and a pathway to US Citizenship under our lawful naturalizaiton process... including, the taking of the Oath of Citizenship and the renouncing all other citizenship or allegences to other nations or potentates.

 Most Americans would be shocked to hear Israel imposes Sharia. But it does, for some 60 years: https://www.google.com/search?client=firefox-b-1&ei=yafZW9vSCMK...

Israel Allows Sharia Law: Has Jewish Americans Been Betrayed

http://teapartyorg.ning.com/forum/topics/israel-allows-sharia-law-h...

If I can not get ya to come to the blog, I will bring it to you.

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Political Cartoons by Gary Varvel

Political Cartoons by AF Branco

ALERT ALERT

Joe Biden Vows: Give Taxpayer-Funded Obamacare To All Illegal Aliens In U.S.

Former Vice President and 2020 Democrat presidential primary candidate Joe Biden is vowing to give Obamacare, funded by American taxpayers, to all 11 to 22 million illegal aliens living in the United States.

During an interview with Telemundo’s Jose Diaz-Balart, Biden forgot that Obamacare technically bans illegal aliens from enrolling in healthcare plans — although illegal aliens are still able to obtain subsidized and free healthcare at Americans’ expense — and promised that under his plan, all 11 to 22 million illegal aliens would be able to get Obamacare.

The exchange went as follows:

DIAZ-BALART: When I … NBC moderated that first debate with you, I didn’t … I don’t recall a clear answer, under your plan should … would the 11, 12 million undocumented immigrants that live in the United States, that have been here many for generations, would they have access …

BIDEN: Yes.

DIAZ-BALART: — to health insurance.

BIDEN: Yes, they … if they can buy into the system like everybody else.

DIAZ-BALART: Because you know, in [Obamacare] they can’t.

BIDEN: Yeah. Yeah, I know. Well they can, that’s my point. They continue to be able to do that.

DIAN-BALART: They cannot under the ObamaCare.

BIDEN: Well and that’s my point, they will though. They will be able to buy into … [illegal aliens] would be able to buy in, just like anyone else could.

Biden joins Sen. Bernie Sanders (I-VT), Sen. Elizabeth Warren (D-MA), and South Bend, Indiana, Mayor Pete Buttigieg — among other 2020 Democrats — in committing to forcing American taxpayers to pay for healthcare for illegal aliens who arrive in the U.S.

Already, due to loopholes, American taxpayers are spending nearly $20 billion every year to provide illegal aliens with subsidized healthcare, emergency room visits, and other health services.

Under the 2020 Democrats’ plan to provide taxpayer-funded healthcare to all illegal aliens living in the U.S., Americans would be billed potentially $660 billion every decade just to cover the costs. Other research has found that the plan would cost Americans at least $23 billion every year.

As Breitbart News has reported, experts have said that giving taxpayer-funded healthcare to effectively all foreign nationals who can make it to America’s borders would drive “strong incentives for people with serious health problems to enter the country or remain longer than their visas allow in order to get government-funded care.”

Despite 2020 Democrats’ continued push for taxpayer-funded healthcare for illegal aliens, American voters are overwhelmingly opposed to the plan. The latest Wall Street Journal/NBC News survey revealed that the healthcare-for-illegal-aliens plan is the least popular policy position, with opposition from 62 percent of U.S. voters.

Similarly, a CNN poll from July discovered that 63 percent of likely swing voters oppose providing healthcare to illegal aliens, along with nearly 6-in-10 of all likely U.S. voters and 61 percent of moderates. A Rasmussen Reports survey also found that likely voters, by a majority of 55 percent, oppose giving healthcare to even the most low-income illegal aliens.

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