We will hear argument this morning in Case 25-365, Trump versus Barbara. General Sauer. ORAL ARGUMENT OF GEN. D. JOHN SAUER ON BEHALF OF THE PETITIONERS
Mr. Chief Justice, and may it please the Court: The Citizenship Clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens, who have no such allegiance. This conclusion reflects the original public meaning of the clause. When Congress used the term "not subject to any foreign power" in the Civil Rights Act of 1866, it rejected the British conception of allegiance. Senator Trumbull explained that "subject to the jurisdiction thereof" in the clause means not 1 owing allegiance to anybody else. And in 1884, this Court recognized that "subject to the jurisdiction" means owing direct and immediate allegiance. The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens. Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognized that the children of temporary visitors are not citizens and illegal aliens lack the legal capacity to establish domicile here. Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of 1 those who follow the rules. It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States. I welcome the Court's questions.
General Sauer, before we get into the broader national issues, would you start with Dred Scott? Dred Scott was a case about state citizenship. It was a diversity case. The -- and, of course, we know what Chief Justice Taney did with that. How does the Citizenship Clause respond specifically to Dred Scott and answers -- or changes -- or corrects its answer as to citizenship? The other point is the Citizenship Clause refers not just to national citizenship but also to state citizenship. Are we to have two different definitions for those? It's -- it's one word, citizens of the United States and citizens of the state wherein you -- they 1 reside. So, as you begin, I'd like you to go back at the beginning and be more specific about the answer. And I want you to explain whether or not those two definitions are the same or related and what state citizenship is based on.
Thank you, Justice Thomas. I'll maybe start by addressing Dred Scott, you know, as -- as you alluded to the fact Dred Scott, you know, imposed one of the worst injustices in the history of -- of this Court and it led to the outbreak of the Civil War. It's very clear, and this Court in all of its early cases interpreting the Fourteenth Amendment said, you know, the one pervading purpose, the main object of the Citizenship Clause, is to overrule dead -- Dred Scott and establish the citizenship of the freed slaves. And if you look at the debates in the Congressional Record and the discussion surrounding the adoption of the Citizenship Clause, what you see is a very clear understanding that the newly freed slaves and 1 their children have a relationship of domicile. They do not have a relationship of any -- to any foreign power. For example, there's a comment where he says, look, people have been here for five generations and no -- clearly have no relationships to any foreign African potentate, you know, are -- have a relationship of allegiance to the United States. And that reinforces our point that allegiance is what the word "jurisdiction" means. It doesn't mean regulatory jurisdiction or -- or -- you know, or sort of being subject, merely subject to the laws. They're talking and they're thinking about it in those debates, about allegiance. Now, as to your second question, if you look at the text of the clause, we believe there -- it says, you know, born in the United States, born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the states of which they reside. So there's a constitutional guarantee that applies to both federal or national and state citizenship. And the key point we make there is 1 that that word "reside," if you look at, for example, Section 1473 of Justice Story's commentaries, was understood to mean domicile. So, when they say "subject to the jurisdiction" and then they go on to say you're a citizen of the United States and the state in which they reside, the very text of the clause itself presupposes that the citizen is domiciled in the United States. If they're present in a state at all, they reside there. "Reside" means domicile in the Constitution, and we think that strongly supports our interpretation. It's textual evidence of our domicile-based theory of jurisdiction.
Well, starting with that theory, you obviously put a lot of weight on "subject to the jurisdiction thereof," but the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are -- are here in the country. I'm not quite sure how you can get to 1 that big group from such tiny and sort of idiosyncratic examples.
There are those sort of narrow exceptions for ambassador, foreign public ships -- "tribal Indians" is an enormous one that they were very focused on in the debates as well. But what I'd do is invite the Court to look at the intervening step, which is the enactment of the Civil Rights Act of 1866. And, there, they didn't say "subject to the jurisdiction thereof." There, it says "not subject to any foreign power." Now, if you go back to Blackstone and Calvin's case, they say it does not matter if you are subject to any foreign power. If you are born in the king's domains, you have this indefeasible duty of allegiance to the king at any time. So there's a clear repudiation in the Civil Rights Act. The Civil Rights Act is this breakwater which makes it very, very clear that they are not thinking about allegiance in the terms of, like, the British common law. They've adopted the Republican conception of allegiance. So it's from "not subject to any 1 foreign power," and then the debates just a couple months later make it very clear that they're re-codifying the same conception. They were dissatisfied with the potential ambiguity in the phrase "Indians not taxed" and they adopted "subject to the jurisdiction thereof." And one of the strongest statements of this is Senator Trumbull's statement that I quoted at the beginning where he says -- he's asked, well, what does that mean, "subject to the jurisdiction thereof." So he says it means not owing allegiance to anybody else. That is what it means. And this Court picked up on that in Elk against Wilkins when it says -- uses, you know, completely subject to the political jurisdiction, not merely regulatory jurisdiction.
What do you do with Wong Kim Ark's quote of Daniel Webster, who said: "Independently of a residence with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance, 1 it is well-known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country's laws." Now the examples that Wong Ark Kim used as exceptions are situations in which there was not temporary allegiance to the United States. The children of foreign diplomats, whose only allegiance was to their foreign -- to their foreign country, and/or occupied territory residents, including those citizens in Maine who had been occupied by the British forces, the U.S. had no control over them. And the whole theory of the Indian tribes was similar. The Indian tribes were analogized to foreign diplomats. So what do we do with that?
I'd say two things. First, as to the Indian tribes, we think that's a case that strongly supports us because, of course, by 1866 and 1868, there was strong understanding that the Indian tribes were subject to the United States' regulatory jurisdiction.
But not the same 1 way that temporary foreigners were, meaning there was a real debate going on whether the U.S. actually had jurisdiction over Indian tribes. That's why our cases for the longest time, until that was finally settled, said absent some act of Congress, there is -- our laws don't apply, U.S. laws don't apply, to Indians on Indian lands, correct?
I believe you look at the Rogers decision, for example, that we cite in our brief, where -- where they say that they are subject to the United States' regulatory --
That's later. I'm talking at the time.
Yes, at the time. So, as to 1817 --
All right. So what do you do during the debates of the 1866 Civil Rights Act and of the Fourteenth Amendment with the entire discussion of the people who opposed the amendment who kept saying we can't pass it because we're making citizens of gypsies, who have no allegiance to anybody, and we're now -- we're going to make citizens of Chinese people, who can't be 1 citizens because we're not going to permit them to be citizens. What do we do with those debates and the fact that the proponents of both acts said everyone who's born in the U.S. will be citizens?
First, as to that particular exchange, page 2890 of the Congressional Record from 1866, Senator Cowan gives this virulently racist statement where he says that. And what does he say right at the beginning of that -- that sort of offensive speech? He says -- he says, we can't have children of gypsies, children of Chinese immigrants, we can't have them become citizens, and he says: "Have they any more rights than a sojourner in the United States?" So he's trying to persuade the Republicans to his view by appealing to a common understanding that sojourners do not have children who become citizens.
So there's powerful evidence there that everybody understood this to, you know, not sweep in the temporary 1 sojourner, and that's why you see for 40, 50 years, you see every commentator who addressed the specific question of temporary presence saying it's not covered by the clause, including for decades after Wong Kim Ark.
General, can I take you back to the Chief Justice's question about the specific exceptions to birthright citizenship that everybody seems to agree were recognized under the common law. And it brings up an important principle about how we interpret the law. When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up? Justice Scalia had an example that dealt with this situation. He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven, and then afterwards someone is charged with the crime of 1 stealing a microwave oven, and this -- this fellow says: Well, I can't be convicted under this because a microwave oven didn't exist at that time. And he dismissed that. There's a general rule there and you apply it to future applications. And what we're dealing with here is something that was basically unknown at the time when the Fourteenth Amendment was adopted, which is illegal immigration. So how do we deal with that situation when we have a general rule?
Yeah, I strongly agree with the way that you framed it, that there is a general principle that's a broad principle that's adopted in the phrase "subject to the jurisdiction thereof." And we submit that our theory of allegiance and domicile-based allegiance is what explains those specific exceptions that everybody was aware of, but it is broad enough to sweep in future situations. And, as you pointed out, illegal immigration did not exist then. Now the problem of temporary visitors 1 did exist. And it's very interesting that as you look at pages 26 to 28 of our brief, commentators going from, you know, 1881 until 1922 are uniformly saying that children of temporary visitors are not included. Now that logic, we say, naturally extends. It's really an a fortiori case. If you have someone who enters illegally, by the 1880s, there are restrictions on immigration. If you've entered illegally, it's kind of, you know, a well-established principle of law going back to the Code of Justinian that says you're not allowed to be there, you cannot -- you don't have the legal capacity to create domicile there.
But I think, General Sauer, that what you just said suggests that you can't be arguing in the way Justice Alito suggests because most of your brief is not about illegal aliens. Most of your brief is about people who are just temporarily in the country, where there was quite clearly an experience of, an understanding of, that they were going to be temporary inhabitants. And your whole theory of the case is 1 built on that group. You don't get to talking about undocumented persons until quite later and at much lesser, you know, I think it's like 10 pages to three pages or something like that. So you can't really be going with Justice Alito's theory. You must be saying that there is a principle that developed -- that was there in -- at the time of the Fourteenth Amendment, isn't that right?
We agree there's a principle there at the Fourteenth Amendment. It is the -- jurisdiction means allegiance. The allegiance of a -- it is very strongly reflected in 19th century sources. The allegiance of an alien present in another country is determined by domicile. And that goes back to The Venus and The Pizarro, it goes through the Koszta Affair in 1853, it comes right up to Fong Yue Ting and Lau Ow Bew that are decided shortly before Wong Kim Ark. So that's the principle. That principle clearly applies here. I also respectfully disagree with that. I think --
Yeah, and I guess, Mr. -- General Sauer, you know, where does this 1 principle come from, allegiance, domicile? Allegiance, I think you point to a Lincoln funeral speech as your primary example of where this principle comes from. It's certainly not what we think of when we think of the word "jurisdiction." And I appreciate that jurisdiction has many meanings, but, you know, the first meaning is, like, if you're subject to jurisdiction, you're subject to the authority of. One doesn't say, oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does. So the text of the clause, I think, does not support you. I think you're sort of looking for some more technical, esoteric meaning. And then the question comes, okay, if the text doesn't support you, if there's a real history of people using it that way, but as far as I can tell, you know, at the time of the Fourteenth -- you're -- you're -- you're using some pretty obscure sources to get to this concept.
Well, I take it straight from the Framers' mouths. So, for 1 example, Senator Trumbull said -- was asked, what does jurisdiction mean? It means subject to the jurisdiction. He says, what does that mean? He says, it means not owing allegiance to anybody else. He is the principal framer of the Civil Rights Act of 1866. Representative Bingham, who's the framer of the Fourteenth Amendment, is asked what -- what does it mean in the Congressional Record at page 1291, and he says, "within the jurisdiction of the United States of parents not owning allegiance to any foreign sovereignty." And we've cited many, many examples where the congressional debates reflect that. Then you referred to the oration of George Bancroft. That's one of probably 16 sources where there's at least 13, counting that one and the 12 treatises we cite at pages 26 to 28 of our brief. There is over a dozen sources that specifically address temporary sojourners in the five decades after the enactment of the amendment, and every single one of them says, well, temporary sojourners, their children are 1 not included, including for two decades after Wong Kim Ark. So --
General, if -- if domicile is the key linchpin to your argument, and I take it that it is, do we look at how domicile was understood in 1868, or do we look at it and how it's understood today in context of the INA?
The 1868 understanding. Now I'm not aware of a strong difference between those, but --
Well, here's where I'm going with it. I'm just working within your argument for a moment. Today, you can point to laws against immigration that are much more restrictive than they were in 18- -- we really didn't have laws like that, we do today, until maybe 1880. So, if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything, any -- any immigration laws. There they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be 1 illegal is immaterial?
I would first cite Wong Kim Ark on that point because Wong Kim Ark says you're --
Well, I'm not sure how much you want to rely on Wong Kim Ark. (Laughter.)
But that -- that statement -- there is a statement in there that says so long as they are permitted to be here. So Wong Kim Ark -- keep in mind that by the time they decide nine -- nine -- Wong Kim Ark in 1898 --
I know, but you're -- but that's 1898. Now I'm looking at 1868, you're telling me is when I should look, in the test for domicile, and -- and -- and the stuff you have about "unlawfully present" is like Roman law sources you're going to, and --
First and Second Restatements as well and --
-- and decisions of this Court. Go -- sorry, go ahead.
Yeah, but -- so it 1 wouldn't be the INA that would control whether you're -- you're capable of having domicile; it would be whatever the law was in 1868?
I -- well, I think that this is addressed by my exchange with Justice Alito from earlier, which is that this concept, jurisdiction, baking in --
-- allegiance and domicile as applied to --
-- so Congress could continually restrict who may lawfully be present more and more, and you would say that would be incorporated into it even though you're telling us to apply the original meaning of 1868?
The original meaning of "domicile."
And so the question is did --
-- is there any argument that the Framers intended to preclude Congress from dictating who can and who cannot 1 establish a lawful domicile here? I don't see any evidence of that in the Congressional Record, so it's a natural extension.
-- matters? I mean, it's not the child obviously. It's -- you're -- it's the parents you'd have us focus on. And, you know, what if -- is it the husband? Is it the wife? What if they're unmarried? Who -- whose domicile?
Well, in -- in the Executive Order, it draws a distinction between the mother and the father, and it's really the mother's domicile, I think, that would matter there because that's the first --
Well, but 1868 matters, you're telling us. So what's -- what's the answer?
The 1868 sources talk about parents. I'm not aware of them drawing a distinction between mother or father, but they say the domicile of the child follows the domicile of the parents.
And how are we going 1 to determine domicile? I mean, would we use contemporary sources on what qualifies as domicile in a state, or do we look in 1868, and do we have to do this for every single person?
And, again, I don't see a strong distinction between those because, of course, domicile as a -- a high-level concept has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently. That -- domicile, when you've come to a new nation, you say I'm here to stay, you become part of their political community, and you become akin to a citizen. And that's reflected very strongly in the cases I cited before.
And just to circle back to Justice Kagan's point, it's striking that in none of the debates do we have parents discussed. We -- we have the -- the child's citizenship, and the focus of the clause is on the child, not on the parents. And you don't see domicile mentioned in -- in the debates. That -- the absence is striking.
I think the 19th century sources would say a child, a newborn 1 child, lacks the capacity to form a domicile, so they're imputed the domicile of their parents. So I don't think they would have seen a distinction between children and parents. And I'd point out that their -- their position, like ours, is forced to look at the domicile of the parents because, if you look at the exceptions that they accept, like --
I'm talk -- I'm talking about in --
-- tribal Indians and so forth --
-- I'm talking about in the debates over the Fourteenth Amendment and -- and the Civil Rights Act, it's striking that these concepts aren't discussed in them.
I think domicile is discussed. I mean, it's -- it's brought up in many --
Allegiance, jurisdiction, complete jurisdiction.
Well, I mean, here's just a few examples: Page 1679 of the Congressional Record, President Johnson vetoes the first version of the Civil Rights Act, and 1 he says, I'm -- I can't sign this because it would extend alien -- citizenship to the children of "all domiciled aliens and foreigners, even if not naturalized." And you have all the other sources that we cited that say when it -- and this goes -- I mean, this is a deeply rooted 19th century understanding. It's reflected in The Venus, it's reflected in The Pizarro in 1814 and 1817. It carries through the 19th century, and this Court is talking about it in 1892 and 1893 when it's discussing the Chinese Exclusion Act. Domicile is the key concept that creates allegiance. That's a --
General -- General, so can I --
General, you -- you said in your reply brief that the children of slaves who were brought here unlawfully, you know, in -- in -- in defiance of laws forbidding the slave trade, would, in fact, be citizens.
And you can imagine that their parents were not only brought here 1 in violation of United States law but were here against their will and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the Fourteenth Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens. But that's not textual. So how do you -- how do you get there? You say it in just a few sentences, so can you elaborate?
Sure. If you look at the nine -- I think, if you look at the 19th century sources, what you see is that even though their entry may have been unlawful, 19th century antebellum law never treated their presence as unlawful. In fact, quite the opposite. One of the amici, in fact, points to, like, a Mississippi statute, which probably is replicated throughout the South before the Civil War, that says slaves in Mississippi have an indefeasible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says, nope, you still live here. Right? And so it would be astonishing, in 1 other words, for the opponents of the Fourteenth Amendment to say, oh, you know, these people were not domiciled and, therefore, it goes the other way because, actually, U.S. law, even if they were -- even if they were brought in illegally and unlaw -- you know, through an illegal slave trade, once they were there, by U.S. law, they --
Well, their intent is to return as soon as they can, let's say. So they're -- they're here, they're resident, and maybe under your theory, I mean, which says, well, lawfulness for a different purpose, but they're here, they're resident. Let's -- let's take your assumption that they're not here unlawfully. Let's say they don't have an intent to stay. They want to escape and go back the second they can. Are they domiciled?
Under the 19th century law. I mean, I think this is the flip side of the hypothetical that we talked about earlier. Under 19th century law, they are treated as domiciled in the United States, so it would be astonishing. And -- and the debates on the 1 congressional floor talk about not this specific case, but they say, look, slaves who have been forced to come here and have been here are lawfully domiciled here. And they don't use the way as "domiciled" like they have; they use "allegiance." They say they don't have allegiance to -- once they've been forced to come here, they don't have allegiance to any foreign or African potentate and, therefore, they're --
But, General, that goes to --
How would that apply to human -- the children of illegally trafficked people today? Would the same reasoning apply?
It would turn on whether the parents -- the parents are lawfully domiciled in the United States.
So, if they're brought in illegally, but then they choose to remain and they want to remain and they're domiciled, you would say that their lawful presence is not dictated by whether they were brought here lawfully or not, and that's 1 different from someone who, say, crosses the border unlawfully?
Yeah, I think it would turn on whether their presence is lawful. And I would --
In other words, obviously, there are many -- many other important things that could be done to assist people like that. The question is, if they give birth to someone in the United States, is that person naturally a citizen? That would turn based on the original public meaning of the clause on the lawfulness of their presence, are they domiciled.
General, can I ask you a question? To follow up on what Justice Gorsuch was exploring with you with respect to domicile, did I understand you to say that domicile is going to be eventually or is controlled by Congress, who is domiciled? I'm -- I'm struggling to figure out who is domiciled in your argument.
The domiciliaries are people who are lawfully present and have an 1 intent to remain permanently. So that's the kind of black-letter, you know, understanding of domicile. Now Congress can dictate that certain classes of people, illegal entrants and so forth, cannot lawfully -- lack the legal capacity to form a legally binding domicile.
But, if that's so, then doesn't it make the domicile for the purpose of the Fourteenth Amendment turn then ultimately on Congress's will in a way that the Framers did not intend? I mean, my understanding was the Framers put this Citizenship Clause into the Constitution to prevent future Congresses from being able to affect citizenship in this way.
Very briefly, no, I don't think so because it is up to the alien whether or not they want to be domiciled here. Now there may be clearer --
But I thought you just said Congress can -- can -- can make determinations as to who counts as being 1 domiciled here.
So, if that's true, then it ultimately would impact, in your theory, whether or not this person can claim that they have citizenship for Fourteenth Amendment purposes based on Congress's determination. And I just thought that's what the Fourteenth Amendment was trying to get away from.
Very briefly, I'd just point -- point you to the discussion in Professor Wurman's amicus brief where he talks about that this is not a new problem. Going back even to the British common law, there's the situation of people who lack a safe conduct and are passing through the king's domains without permission, and he says the best reading of the common law is they are not under the protection of the king and they're not covered by the rule of birthright citizenship.
Thank you, counsel. 1 You mentioned in your -- your briefing and also this morning the problem of birth tourism. Do you have any information about how common that is or how significant a problem it is?
It's a great question. No one knows for sure. There's a March 9th letter from a number of members of Congress to DHS saying do we have any information about this. The -- the -- the -- the media reports indicate estimates could be over one -- a million or 1.5 million from the People's Republic of China alone. The -- the Congressional Report that we cite in our brief talks about certain hot spots like Russian elites coming to Miami through these birth tourism companies. And, I mean, here's -- here's -- here's a fact about it that I think is striking. Media reported as early as 2015 that based on Chinese media reports, there are 500 -- 500 birth tourism companies in the People's Republic of China whose business is to bring people here to give birth and return to -- to that nation.
Having said all that, you do agree that that has no impact on the legal analysis before us?
I think it's -- I quote what Justice Scalia said in his Hamdan dissent, where they had -- where, like, their interpretation has these implications that could not possibly have been approved by the 19th century Framers of this amendment. I think that shows that they've made a mess -- their interpretation has made a mess of the provision.
Well, it certainly wasn't a problem in the 19th century.
No, but, of course, we're -- we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a -- a child who's a U.S. citizen.
Well, it's a new world. It's the same Constitution. (Laughter.)
It is. And, as Justice Scalia said, I think, in the case that Justice Alito was referring to, you've got a 1 constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here, and I think we quote that in our brief.
Thank you. Justice Thomas, anything further?
General, you're getting a lot of questions about immigration, and they harken back, of course, to citizenship, which is defined in or set out in the Fourteenth Amendment. How much of the debates around the Fourteenth Amendment had anything to do with immigration?
I think that the principal focus of those debates has to do really not with immigrants but with the Indian tribes. I mean, obviously, the main goal, the one pervading purpose, as this Court said in the Slaughter-House cases, was to establish the citizenship of the freed slaves and their children. But they were very concerned about 1 the -- the -- the -- the problem of something that they all accepted as a given, which is that the children of tribal Indians are not within the rule of birthright citizenship. So I think that's what they focus on. We draw an analogy to that too, the issue of temporary sojourners. And then -- but there are mentions of temporary sojourning multiple places in the congressional debates, and all of those quotes go in our direction.
And there was -- Justice Sotomayor brought up Wong Kim Ark. There was no question in that case that -- about domicile, was there?
I disagree. The Court says at the very beginning of its opinion here are the accepted facts. These are lawfully domiciled here. When it states the question presented, it talks about domicile. When it recites the legal principle at page 693, it says "domicile" three times. And at page 705 at the end of the opinion, it says here's the single question we've decided. We've decided that Chinese immigrants with a permanent domicile and residence here fall 1 within the rule of birthright citizenship.
Under the minimum definition of "domicile," which I think existed in 1868 and continues to exist today, a person's domicile is the place where he or she intends to make a permanent home. Now, normally, you would think that a person who is subject to arrest at any time and removal could not establish a domicile, but we have an unusual situation here because our immigration laws have been ineffectively and, in some instances, unenthusiastically enforced by federal officials. So there are people who are subject to removal at any time if they are apprehended and they go through the proper procedures, but they have in their minds made a permanent home here and have established roots, and that raises a humanitarian problem, and I wonder if you could -- you could address that.
If I may, one legal and one humanitarian. The legal point is, if you look at those cases, for example, Carson against Reid, Park against Barr, this Court's 1 decisions in Elkins and Toll against Moreno, they talk about the legal capacity to -- you know, to -- to create a domicile excluding someone who may have the subjective intent, which otherwise would be determinative, as being excluded. On the humanitarian point, I would point out, as I said at the beginning, Justice Alito, that the United States' rule of nearly unrestricted birthright citizenship is an outlier among modern nations. It's a very small minority of nations that have that rule. For example, every -- every nation in Europe has a different rule. And the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship, I don't think, is a strong argument. And I'd point out, obviously, for -- you know, for -- for -- for reliance-related reasons, this Executive Order applies only prospectively. And we ask the Court to rule only prospectively.
I agree with you what the European nations' rule is, but England was always different, wasn't it?
Not until 1983 it changed to the -- to the --
That's not quite true. The Wong Kim Ark does a wonderful job of laying out the English rule. And you claim it was different, but there isn't any treatises or scholars who say it's different. English rule was always by birth. Other people were not by -- other countries were not by birth. Let me just go to the implications of what you're asking us to do. You are asking us to overrule Wong Kim Ark. Well, there, Wong Kim Ark's parents were domiciled in the U.S., but they owed loyalty to China. They eventually returned to China. So they didn't have a primary allegiance to the United States. So you're not asking that. Are you asking us to overrule then our cases, one of which said that a child of illegal aliens could be -- was a citizen? You're asking us to overrule that?
No. First of all, 1 we're not asking you to overrule Wong Kim Ark. We agree with the holding of Wong Kim Ark --
But you are asking us to --
-- and much of the reasoning, and -- and then, as to those later cases starting in 1966 where the Court makes sort of, you know, unreasoned references to this issue, we think --
Wait a minute. Hintopoulos, the reference -- the respondent unlawfully overstayed her visa and gave birth to a child here. The Court, Harlan II, wrote: The child is, of course, an American citizen. That person wasn't domiciled here lawfully.
So you're asking us to overrule that case?
I wouldn't call -- I -- I wouldn't say we're asking you to overrule. We think that's similar to a drive-by jurisdictional ruling where there's a simple statement that's not debated, there's no further analysis of it, there's really an assumption there, and we think that's similar 1 to cases where the Court just assumes jurisdiction without discussing it.
When we ruled in Thind that Indians could not become citizens, the government then after began to unnaturalize many Indians who had been sworn in as citizens. You asked us to concentrate only on the prospective nature of the citizens order, but the logic of your position, if accepted, is that the next president -- this president or the next president or a Congress or someone else could decide that it shouldn't be prospective. There would be nothing limiting that according to your theory.
If, as we ask, the Court confines its ruling to prospective relief only, which I take exception to that --
No, I'm saying to you don't -- yeah, that's what you're asking us for relief right now. I'm asking whether the logic of your theory would permit what happened after the Court's decision in Thind, that the government could move to unnaturalize people who were born here of illegal residents.
No. We believe the 1 Court should do what it did in Sessions against Morales-Santana, where there was a -- a ruling that would have deprived people who were already citizens of citizenship, and the Court said this applies prospectively only, and we think that's the appropriate course here.
Well, but that's not what we did in Thind.
We think that Sessions provides the -- the proper course here. And that's what we're asking. We are not asking for any retroactive relief.
General, I think even your brief concedes that the position you're taking now is a revisionist one with respect to a substantial part of our history. And I think that that's in large part because of Wong Kim Ark and the way people have read that case, which, of course, was in the late 19th century, and have read it ever since then. And what that case suggests is -- I mean, there's a very clear rationale. You say, oh, it says the word "domicile" a bunch of times, which it does. It's a long opinion. It 1 says a lot of things. But the rationale of the case is really quite clear. It says there was this common law tradition. It came from England. We know what it was. Everybody got citizenship by birth except for a few discrete categories, which were the ones that the Chief Justice mentioned at the beginning. And that tradition carried over to the United States. And then what the Fourteenth Amendment did was accept that tradition and not attempt to place any limitations on it. And so that was the clear rationale, a clear rationale that is diametrically different from your rationale. And everybody took Wong Kim Ark to say that and to say that, as a result of that, of course, birthright citizenship was the rule. And I think everybody has believed that for a long, long time. And I guess my question is this. You have a story about what -- about the reasons why we should go back to what you view as the original meaning, and given the long history of this country's understanding about birthright 1 citizenship, what would it take -- what do you think it should take to accept that story in terms of the -- the magnitude of the evidence that we would need to see in order to accept this revisionist theory and in order to change what I think people have thought the rule was for more than a century?
Let me make two points in response to that, one historical and one legal. Historical point: I disagree with the way you've characterized the understanding of Wong Kim Ark. And I would point to something that's emphasized in their amici's briefs, which is, in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that. And he admits that there's an array of authorities that go against him. He talks about careful and reliable, high authorities. 1 And that's referring to the consensus that we point out in pages 26 to 28 of our brief, where you've got 12 treatises from 1881 to 1922 that all say -- including for decades after Wong Kim Ark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official, and he adopted that as the policy of the Roosevelt administration. So their argument is basically saying there wasn't this consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction for 50 years, right? For 50 years, from the framing of the clause, through the 1920s, maybe 60 years, the general understanding when it comes to what's at issue here and was not at issue in Wong Kim Ark is that children of temporary visitors do not become citizens under the clause. And then the legal point, you -- you referred to the sort of concept of temporary and local allegiance, and they rely on The Schooner Exchange, this theory that you've got 1 temporary and local allegiance. But, if you actually look -- look at page 572 of the Congressional Record, right at the beginning introducing the Civil Rights Act, Senator Trumbull says: I said not subject to any foreign power. I wanted to say born in the United States and, you know, owing allegiance to the United States, but I was aware that there's "a sort of allegiance for persons temporary resident in the United States whom we have no right to make citizens." So Senator Trumbull says: The reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens.
Just to follow up on -- on that point, General, one interesting counterpoint about the understanding of Wong Kim Ark that followed with respect to temporary sojourners -- and I -- I take you've got your -- your well-taken points -- but there 1 was, of course, John Marshall Harlan, the great dissenter, who dissented in Wong Kim Ark and later gave a bunch of lectures. And he -- he posed the question about the sojourners: Suppose an English father and mother went down to the hot springs to get rid of the gout, and while there, they have a child, now back in England. Is that child a citizen of the United States born of the jurisdiction thereof by mere accident of birth? And he says: Under Wong Kim Ark, he is. And he continues: I was one of the minority, and, of course, I was wrong. Now I -- I'm sure that was tongue-in-cheek, but what do you do with that?
I draw the -- I mean, I'd say two things in response to that. First of all, he gave a speech, but we have 12 uncontradicted treatises that say the opposite, that that is not what Wong Kim Ark means and that's not the meaning of the clause. But also, I'd make a more fundamental point. When you're looking at Wong Kim Ark, one of the -- the dissent has this dominant theme that -- really predominant theme, like, 1 you can't be doing this because you can't make the -- the -- we all agree or it's obvious that the children of temporary resident -- temporary visitors do not become citizens. And how does the majority opinion address that? It says "domicile" three times when it recites the legal rule. It says permanent residents and domicile when it decides the holding. So the Court should be bound by what it says. This is what we're deciding. And, again, at page 75, it says this is the single question -- now there's been a lot of discussion up to that point, but at the very end, they say the single question we've decided is the citizenship status of the children of Chinese immigrants with a -- a permanent residence and domicile in the United States.
Do you think Native Americans today are birthright citizens under your test and under your friend's test?
I think so. I mean, obviously, they've been granted citizenship by statute.
Put -- put aside the statute.
Do you think they're birthright citizens?
No, I think the -- the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens.
I understand that's what they said, but your test is the domicile of the parents, and that would be the test you'd have us apply today, right?
Yes. Yes. So, if a tribal Indian, for example --
Are tribal members born --
-- you know, gives up allegiance to --
-- born today birthright citizens?
I think so on our test, yeah, if they're lawfully domiciled here.
I'm not sure -- I have 1 to think that through, but -- but --
-- I'll take the yes. That's all right. (Laughter.)
And then I just want to ask you quickly about the INA adopted in 1940 and 1952. It uses the same term as the Citizenship Clause. And one might have a pretty good argument -- I'm sure you've got some arguments along just these lines -- that it should be understood to mean whatever it meant in 1868. Well, there was a lot of water over the dam between those two things. And as your brief points out, by the Roosevelt administration, there's a pretty strong jus soli move, that is to say that the thin concept of jurisdiction, power over, is enough, a broader understanding of birthright. Would there be an argument for reading that statute under its original plain meaning at the time, 1940, 1952, to perhaps have a different meaning than the Constitution?
We don't think that's the best interpretation referred to. I give two reasons. One is it would be very surprising if a statute that says exactly the constitutional phrase, "subject to the jurisdiction thereof," were interpreted to mean something totally different or to ossify a then-current misunderstanding of the clause. We think that the -- that the best analogy here is probably state long-arm statutes. Take a sort of non-controversial example, state long-arm statutes routinely say we're going to exercise personal jurisdiction to the extent of due process. It takes the constitutional standard and it puts it in -- in the statute. And nobody thinks that those ossify -- you know, are limited to the precedents, this Court's precedents at the time they were enacted. Everyone thinks that that phrase "due process" incorporates, you know, the developing law of due process and minimum contacts and so forth, including from this Court. So we think that's the best analogy when it's -- when you're looking at the 1 constitutional phrase itself and you take it out of a -- a freighted context, the natural interpretation is to say this means what -- this reflects the objective meaning of the Constitution, and the objective meaning of the Constitution is its original public meaning in 1866 and 1868.
Do you see any notable counterpoints to that argument?
I'm sure there are arguments on the other side. We've addressed them in the brief.
So -- so, really, at the end of the day then, this is a straight-up constitutional ruling you want from this Court, win or -- win, lose, or draw?
Yeah. We -- we -- we think that the statute and the Constitution means the same thing. If the Court disagrees, obviously, we'd prefer an adverse ruling if the Court's going to do that on a statutory basis than a constitutional basis --
Well, but you've just disavowed that in -- in your responses to me by saying that that's not an available 1 option, is the way I understood it.
Right. Yes. The Court would have to disagree with our statutory position, which is that it means the same thing as the Constitution. But, if the Court were to do that, then the natural course would probably be to rule on statutory grounds alone. Now we think they mean the same thing, and we've got arguments for that, including, I think, the analogy I just referenced.
General, how should we think about the text of the Fourteenth Amendment, "subject to the jurisdiction thereof," as distinct from the different language of the Civil Rights Act of 1866, which refers, as you know, to "persons not subject to any foreign power?" Those texts are on their face different, and the history that Justice Kagan referred to might have developed quite a bit differently if the Fourteenth Amendment's text had used the phrase that was in the Civil 1 Rights Act.
That's an excellent point. And this Court has held in multiple cases -- Hurd against Hodge and General Building Contractors -- has recognized that they're intended and they did mean the same thing. And that's powerfully reinforced by the congressional debates, where you -- really, what they're discussing is they said they were dissatisfied with the language in the Civil Rights Act because the phrase "Indians not taxed" they thought was ambiguous. And so they switched to the affirmative statement as opposed to the negative statement, the affirmative statement, "subject to the jurisdiction thereof," but there's express statements in the Congressional Record essentially that were doing the same thing. And that is what this Court's case law has reflected.
Why didn't they say the same thing?
Again, it appears they preferred the sort of positive formulation, "subject to the jurisdiction thereof," as 1 opposed to "not subject to any foreign power." And, again, there's a deep concern and lengthy discussion of the potential ambiguity in the Civil Rights Act. They wanted to eliminate an ambiguity but do the same thing. And I think that that's -- that's very strongly reflected in those debates.
By the time of the 1940 and 1952 congressional actions where Congress repeats "subject to the jurisdiction thereof," given Wong Kim Ark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language, knowing what the interpretation had been. So how are we to think about that?
I think baked into that question is an understanding, I think, that was reflected in Justice Kagan's earlier question that everybody understood that Wong Kim Ark meant that, and the history I talked about, I think, refutes that, that, really, there's a consensus that goes our way for 1 decades and decades after the adoption of the amendment and after Wong Kim Ark on the specific question of the children of temporary visitors, and -- and it's really not until -- and, again, their author in 1921 is saying, hey, the other side is the consensus.
Do you -- I'm sorry to interrupt.
But there's Executive Branch interpretations and others. And if -- if you're in Congress in 1940 and 1952 and you want to limit the scope of Wong Kim Ark or to eliminate ambiguity, why do you repeat the same language rather than choosing something different? For example, you could use the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope.
I think -- I think, if you look at the structure of that statute where it's 1401(a) and then (b) through (h), (a), it says these are the people who are entitled to 1 birthright citizenship. (A) is the constitutional standard, and then (b) through (h) are all the categories that Congress has super-added to that. I think the natural inference is that Congress is codifying, which it was consciously doing in 1941, pulling all the naturalization rules and immigration rules together into one statute and said, you go to one place, here's who's -- who -- who is a birthright citizen; (a) those who are guaranteed that right by the Citizenship Clause, and (b) through (h) are the ones that Congress has added through its naturalization power. So that inference to me says (a) is merely -- it's not trying to change or alter the constitutional standard. It's just saying, hey, the baseline is what the Constitution says, and we -- we codify that and then we move on to the new categories.
Of what relevance, if any, do you think Section 5 of the Fourteenth Amendment has here that gives Congress the power to enforce the article, the Fourteenth Amendment, by appropriate 1 legislation? Does that give Congress room here, or do you not think so?
I -- I do think that a ruling in our favor would leave room for Congress. I -- I don't think you have to rely on Section 5. I think that Congress has its own inherent power to grant citizenship by statute. So, if the Court were to rule in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.
How much room do you think Section 5 gives, if any -- and it may not be any -- Congress to interpret the phrase "subject to the jurisdiction thereof" or to define that? Does it -- is that -- is that relevant at all?
It's a great question, and I'm thinking about it for the first time. I assume it would be governed by the congruence and proportionality test from this Court's case law. How that would apply here, I don't know. And I don't think it's presented because our contention is that the statute means exactly 1 the same thing. If anything is congruent and proportional, it's that. And I think the Court held that in United States against Georgia.
You've mentioned several times the practices of other countries, and that, obviously, as a policy matter supports what you're arguing here. But, obviously, we try to interpret American law with American precedent based on American history. That's certainly what I try to do and I think you try to do. And so why should we be thinking about, even though as a policy matter I get the point, thinking about, gee, European countries don't have this or most other countries, many other countries in the world don't have this? Doesn't that -- I guess I'm not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it's a very good point as a policy matter.
Yeah. I -- I largely agree with that. And you can view it as being raised preemptively defensively. I'm going first, but, obviously, the other side and their 1 amici say -- you know, make prediction -- end-of-the world-type predictions, and our point is, you know, it's a very small minority because almost every country and, certainly, all -- all European countries have a different rule, and the world hasn't ended there.
The other side -- last one. The other side relies heavily, of course, on Wong Kim Ark, and you disagree with their interpretation. Oftentimes, when you are dealing with a constitutional precedent like this, you might argue we disagree with that interpretation, but if you adopt their interpretation or agree with their interpretation of that precedent, you should overrule it. And you're -- you haven't made that argument here, and I'm just giving you an opportunity to explain why you haven't.
Because we think it's totally unambiguous in Wong Kim Ark that the holding is -- relates to domiciled aliens. And so we strongly agree with the holding. We think domicile was the touchstone, and we think it's not a coincidence for the reasons I -- I 1 maybe speculated a little bit when I was talking with Justice Gorsuch about, you know, how the dissent raises this and then the majority's like, well, we're putting domicile in there so we know that the absurd conclusion that they say would come from this isn't there. But also, domicile has kind of the sort of relationship that creates this relationship of allegiance that makes you part of a political community if you're an alien from another country. That's deeply rooted in their understanding where they're doing it -- they talk about domicile in Yick Wo against Hopkins, in 1892 and 1893 cases, and there's this deeply rooted understanding again that goes all the way back to the early 19th century. So we think that's a really important conception. So I -- I -- I mean, we disagree with some of the dicta in Wong Kim Ark that we discuss and we think there's dicta that goes our way that the other side overlooks, and we're not asking the Court to overrule dicta. We just say don't follow erroneous dicta and don't apply it to this brand-new situation that 1 was not decided in Wong Kim Ark.
So, General Sauer, I want to zoom out a little bit and think about jus soli and jus sanguinis. So, as I understand it, at the time of the Fourteenth Amendment, those were the two dominant approaches. You know, jus soli, the English common law, roughly following the soil, jus sanguinis, roughly citizenship following the parents. Now jus soli was very generous on the soil, the English common law, and so it extended citizenship to those born there who may not have been born of parent citizens, but jus sanguinis, you know, if parents who are citizens and had a child abroad, then that child's citizenship followed the parents. So one thing that's puzzling me about your argument when I think about the ratification of the Fourteenth Amendment, in many ways, it would have made sense for them -- and you -- you acknowledge the jus sanguinis in 1 citing Vitel. It would have made sense in some ways for them to say, okay, we're going to follow -- if they wanted to accomplish what you're saying they wanted to accomplish, you could say, well, we're going to follow jus sanguinis because we're going to make it all ride on parentage. But, instead, I mean, the Fourteenth Amendment we're talking about "subject to the jurisdiction thereof," but it also says "born in the United States." So you have the jus soli kind of point there, but you're saying it narrowed that point by tying it to the citizenship of the parents at least as to soil, but I take it you're not arguing that United States citizens who have children born abroad would qualify for birthright citizenship. So it's -- it's kind of a narrower view of both the traditional jus soli rule and a narrow -- narrower view of the jus sanguinis rule. So why would they have done that, and if they were going to invent an entirely new kind of citizenship, like an American brand, why wouldn't we have seen more discussion of that in the debates?
I think you do. And -- and, honestly, I think the right way to conceptualize it, it is much more -- it is a modified jus soli because even the British sources don't just say you're born here, you're a citizen. They say you're born here and you have to be under the protection of the sovereign, you have to have a relationship of allegiance. "Allegiance" is the word in Calvin's case that provided the backstop.
But they don't focus on the parents. It's the child. And your approach focuses on the parents' allegiance.
Yeah, I'm not sure that that's true of the two sources, but --
Well, it seems a little ambiguous, and I'm going to ask your friend on the other side that question.
Let me -- let me point out then that there are two criteria. One is birth on the soil and the other is legiance or allegiance. What we have is birth on the soil remains the same, right, and -- and so they are, and that's why so much of Wong Kim Ark is actually, we agree with because they are 1 adopting a modified British rule. They are not going the French rule, you know, that Vitel talks about, where it's like who's -- who's the citizen. That had to be done by statute, as you pointed out, which it was in 1401. But what they've got is they say "birth in the United States" and "subject to the jurisdiction thereof." That is talked about as allegiance, allegiance, allegiance, in the congressional debates. But they were clearly not incorporating the British feudal monarchial conception of allegiance, where it's indefeasible. I mean, going back to the early 1700s, our -- our nation had repudiated the notion that citizenship is indefeasible. The expatriation statutes for the late 1700s reflect that. And -- and -- and, again, you look at the 1868 Congressional Report that we cite, there, this is the same group of -- group of congressmen, Republican congressmen, and they say things like the U.S. Constitution itself is proof that Blackstone's theory of allegiance was not accepted. So they accept birth on U.S. soil, but 1 then they take the concept of allegiance and give it its Republican/Democratic/American understanding, and that's very, very -- I think that makes a ton of sense.
Okay. And let's talk about its application. So, you know, there are some -- I can imagine it being messy in some applications. So how -- what would you do with what the common law called "foundlings"? You know, the -- the thing about this is then you have to adjudicate if you're looking at parents and if you're looking at parents' domicile, then you have to adjudicate both residence and intent to stay. What if you don't know who the parents are?
I think -- I think there are marginal cases. That one, I think, has the benefit of being addressed in 1401(f), where it talks about --
Yeah, yeah, yeah, yeah, but what about the Constitution?
Under the Constitution, it's -- it's -- I mean, look, the -- "domicile" is a constitutional standard in all kinds of other situations --
Well, and it's hard. I mean --
-- diversity jurisdiction, personal jurisdiction -- sorry.
Well, yeah, in personal jurisdiction, I mean, 1332, diversity jurisdiction. And the thing is it has to be litigated because it turns on intent, and both -- the virtue of both jus soli and jus sanguinis, whichever one you pick, it's a bright-line rule. How would it work? How would you adjudicate these cases? You're not going to know at the time of birth for some people whether they have the intent to stay or not, including -- including U.S. citizens, by the way. I mean, what if you have someone who is living in Norway with, you know, their -- their husband and family but is still a U.S. citizen, comes home and has her child here and goes back? How do we know whether the child is a U.S. citizen because the parent didn't have an intent to stay?
I'd say -- make two 1 points, one practical, one legal. The practical point is, under the terms of this Executive Order, you don't have to because the Executive Order turns on an objectively verifiable thing, which is immigration status. Are you lawfully present but temporarily present, or are -- do you have an illegal status? So those kind of, like, you know, taking evidence, so to speak, under subjective intent wouldn't be done. And as to the constitutional point, obviously, domicile is baked into a lot of constitutional and legal concepts, and there -- there may be situations where facts are determined. But, if you look at the guidance, the guidance that all the agencies did after this Court in CASA said the agency could go forward and issue guidance, the guidance provides, I think, very, very clear, objective, verifiable approaches to -- to doing this. And -- and so the -- as a practical matter, I don't think it's presented by this Executive Order.
Good morning, General. So I guess I am looking at your position in this case, and it boils down to requiring us to do at least these two things: One is believe that the Framers were not importing the common law rule and understanding of birthright citizenship, and the second is to believe that what they were doing was departing from that common law rule in the way that you suggest, that is, in the -- they were seeking to have this turn on domicile. I think you have a number of hurdles to accomplish those two things, one of which, I think, is that when we look at this Court's case law -- no one, I think, has mentioned Schooner's Exchange, but it appears -- that was a 19- -- an 1812 case in which it seems as though the Court had already accepted at the time of the ratification of the Fourteenth Amendment that the allegiance that you're talking about was the English common law rule, that, in other words, allegiance meant that you are covered by the laws of the jurisdiction, that you can rely on that jurisdiction's 1 protection. That's what allegiance meant. Now you're saying today, no, no, allegiance meant something about loyalty or that kind of idea. But, if the Supreme Court had, prior to the Fourteenth Amendment, established that allegiance meant the common law definition, I think your first hurdle is to help us understand why we would believe that when the common -- when the Fourteenth Amendment was ratified, the Framers weren't just incorporating what we had previously said it meant.
Page 572 of the Congressional Record directly addresses this. They say the concept of temporary and local allegiance from The Schooner Exchange is what is meant by -- or temporary and local jurisdiction from The Schooner Exchange is what is meant by the word "jurisdiction" in the Fourteenth Amendment. Senator Trumbull says: I thought about saying owing allegiance, but, again, "there's a sort of allegiance from persons temporarily resident in the United States whom we have no right to make citizens." So he 1 expressly and consciously --
-- rejected reliance on Schooner Exchange.
-- what do we do with -- I mean, that's a debate and it's a discussion, very valid, but then we have a subsequent debate between Fessenden and Wade where the same concept comes up and it becomes clear at least from Senator Wade's perspective that that's wrong. So Senate -- Fessenden -- and I'm not sure whether these are senators, I apologize -- Fessenden says: Suppose a person is born here of parents from abroad temporarily in this country. Wade responds: The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside near the United States, et cetera, et cetera. So it appears as though, in that exchange, at least Senator Wade believed that the English common law understanding of what it means to have allegiance, to be a temporary person on the soil, was what was being adopted.
Yeah. That concept or that exchange strongly supports us. If you look at it in context, Senator Wade has introduced a version that says only birth on U.S. soil and doesn't have any allegiance or jurisdictional element to it. And so Senator Fessenden stands up and says, well, that can't be right because, you know, obviously, what about the children of temporary visitors? It has this -- you know, it's another one of these statements that has this appeal to a background understanding that we all agree that the temporary visitors, their children do not become citizens. And then Senator Wade has to kind of backtrack and say, well, what about the children of ambassadors? And, in the end, Congress does not adopt Senator Wade's proposal. So we think that, to the extent you can draw an inference from that, the inference strongly supports us.
All right. Well, let me just ask you about why we wouldn't see in the Fourteenth Amendment anything about parental allegiance. Several of my colleagues 1 have talked about the fact that your view of this turns on what the status of the parents are and not the child, as would the "born in the United States" view of it. What -- can you help us understand why we wouldn't expect to see a mention of parents in the text of this amendment?
I think it was well understood that, for example, children cannot -- you know, newborns cannot form domicile. So it followed every 19th century --
That assumes domicile is in the test. And I'm asking you, how do we know that Congress did adopt the test that you say it adopted?
Yeah, when you're looking at 19th century conceptions of allegiance, the notion that the allegiance -- again, you say "domicile" is instantiating the concept of allegiance for aliens as opposed to citizen. All of that, the 19th century understands the newborn's domicile, its allegiance, follows the allegiance of the parents. And I'd point out that their theory 1 relies on parental allegiance as well because they recognize the exceptions for, you know, hostile invading armies, for tribal Indians, for ambassadors. Again, the child's allegiance status, even on their view --
All right. But what do -- what do we do --
-- turns on the status of the parent.
-- what do we do with -- with Professor Muller's amicus brief and the historical record and the fact that even at times in this country where we understood that the parents were declared enemies of the United States -- I'm talking about World War II and Japanese internment -- babies born in that circumstance were given birthright citizenship? So it seems as though this concept of allegiance of the parents really wasn't driving birthright citizenship at least at this period of -- of our history.
So are you saying this is wrong or they shouldn't have gotten birthright citizenship?
Well, if they were domiciled here, yes, they should have. If they were temporarily present, then no. But -- but the executive practice we can see --
Can I -- I'm sorry. How does --
-- how does the temporary presence run with your concept of allegiance? I'm not sure I understand. So can you be clear? Are you saying that only people who are domiciled here as you define it can form the necessary loyalty to the United States?
It's not a -- allegiance is not a question of subjective loyalty.
You owe. It is something you owe. It's a reciprocal relationship between the citizen. Whether they want it or not, they have that allegiance. And I think it's powerfully --
Domicile. I mean, that's what it says in so many words in The Venus and The Pizarro. It says, look, if you're talking about an alien, if they're just temporarily passing through, no, they don't have allegiance. But, if they've made it their permanent home, they become part of our political community, and they are analogous or akin to --
All right. Just quickly because I'm -- I'm mindful of the time, what do you do with Wong -- Wong Kim Ark's statement that birthright citizenship is -- is applying "independently of a residence with intention to continue such residence independently of any domiciliation"? I know that they used "domicile." It's a fact in the case. But that's not a part of their holding. It's not what the reasoning turns on. Correct?
I believe you're -- yeah, I believe you're quoting from page 693 of that opinion, and it goes on to say not citizen 1 turns on that but the duty of obedience to our laws. It doesn't take the further step at that point and say, therefore, if you have temporary and local allegiance, you're a citizen. And immediately before that, you have that, page 693, summary of the Court's holding where it says --
-- domicile, domicile, domicile.
-- Wong Kim Ark incorporates a domicile requirement?
That is the holding. It's definitely clearly expressed in the holding in multiple places.
All right. One final thing. Prospective. You say prospective we're supposed to do this, don't worry about the people who are already here and who would not qualify under your rule. How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are 1 we determining when or whether a newborn child is a citizen of the United States under your rule?
And I think that's directly addressed in the SSA guidance that's cited in our brief. What SSA says is there's currently a system where, for example, secure -- Social Security numbers are generated based on the birth certificate. They say this can still be for the vast majority of instances completely transparent. You will still get a -- because the --
Not on transparent. I'm just talking about the particulars because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So are we bringing pregnant women in for depositions? What -- what are we doing to figure this out?
No. As I pointed out earlier, the Executive Order turns on lawfulness of status. So, if you -- if you -- if you give birth to a baby in the hospital right now, it gets the birth certificate in the 1 system. There's a computer system that we talked about that assigns --
So there's no opportunity -- there's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States?
Absolutely not. The opposite is true. Their opportunity to dispute if they think they were wrongly denied, which would only happen in a tiny minority of cases --
-- is directly addressed in that guidance.
-- after their baby has been denied citizenship, then we can go through the process?
Yes. And -- and the way that -- I mean, I'm summarizing because I'm not a expert on computers --
-- but there's a 1 computer program that currently automatically generates a Social Security number. SSA says, look, a Social Security number, non-citizens can have them if they have work authorization, so it doesn't prove citizenship. We'll give you a Social Security number provided that there's -- the system automatically checks the immigration status of the parents, which there are robust databases for, and then you -- you -- you -- it appears no different to the vast majority of birthing parents.
Thank you, counsel. Ms. Wang. ORAL ARGUMENT OF CECILLIA D. WANG ON BEHALF OF THE RESPONDENTS
Mr. Chief Justice, and may it please the Court: Ask any American what our citizenship rule is and they'll tell you, everyone born here is a citizen alike. That rule was enshrined in the Fourteenth Amendment to put it out of the reach of any government official to 1 destroy. When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raise today, this Court said no. Thirty years after ratification, this Court held that the Fourteenth Amendment embodies the English common law rule. Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen. It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign's jurisdiction even when they're in the United States, a closed set of exceptions to an otherwise universal rule. My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark. That is a fatal concession because Wong Kim Ark's controlling rule of decision precludes their parental domicile requirement. The dissent understood that, and the majority tells us six times in the opinion that domicile is irrelevant under common law. Lynch versus Clarke was already the dominant American 1 case on citizenship, and it held that the U.S.-born daughter of temporary visitors from Ireland who took the baby back to Ireland with them, that that daughter was a U.S. citizen. Authorities including Lincoln's attorney general and Kent's commentaries embraced Lynch, and Kent specifically talked about temporary sojourners' children being U.S. citizens. Justice Fields said in 1884 that that reflected the general understanding. That understanding was confirmed by Congress with its 1940 act. The Fourteenth Amendment's fixed bright-line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable, and it prevents manipulation. The Executive Order fails on all those counts. Swaths of American laws would be rendered senseless, thousands of American babies will immediately lose their citizenship, and if you credit the government's theory, the citizenship of millions of Americans, past, present, and future, could be called into question. All of this tells us the government's 1 theory is wrong. I welcome the Court's questions.
There are five exceptions to citizenship that you do accept.
Yes, depending on how many you count, Justice Thomas, how you count them.
What is the underlying rule of law that you use to connect these five exceptions?
Sure. So, as I just said, all of the exceptions involve situations where that U.S.-born child is not subject to the jurisdiction of the United States because that extraterritoriality, the fiction of extraterritoriality, the interaction of another sovereign between the United States' jurisdiction and that person, applies to the child as well as to the parent. Everyone else born in the United States is subject to the United States' jurisdiction. To answer Justice Barrett's question to my friend, that's what sets those exceptions apart from other U.S.-born persons.
We -- we've heard a lot of talk about Wong Kim Ark, and you 1 dismiss the use of the word "domicile" in it. It appears in the opinion 20 -- 20 different times and including in the question presented and in the actual legal holding. And the government doesn't want it to be overruled because it relies on -- it's willing to rely on that particular fact in that case. Isn't it at least something to be concerned about to say that since it's discussed 20 different times and has that significant role in the opinion that you can just dismiss it as irrelevant?
Well, Chief Justice, Mr. Chief Justice, I think we have to look at what the controlling rule of decision is in Wong Kim Ark. Justice Gray takes pains in the majority opinion to set out his analysis. He first starts with a premise that in construing the Fourteenth Amendment Citizenship Clause, we look to the English common law. That was the rule that applied from the colonial era on at least for the colonists and for European immigrants. He then says: Look, Chief Justice Marshall tells us in The Schooner Exchange what 1 "subject to the jurisdiction" means, again looking to English common law. Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance, and those who are present in the dominions of the sovereign owe temporary allegiance for as long as they're present. The only exceptions again at common law were ambassadors, people born on foreign ships, and people who are born during periods of foreign occupation. He then gets to the government's favorite page, 693, where he says, look, we have had this rule in the United States as to citizenship at least for white Americans from before independence. The purpose of the Fourteenth Amendment was to embrace that universal rule of birthright citizenship, to embrace and incorporate the common law exceptions, with the single additional exception of the preexisting exception for tribal Indians that we had in the United States, which is an analogous exception, and that's the closed set of exceptions. You can't make sense of the holding in the case without looking to the controlling 1 rule of decision, which is the common law. And I think my friend agrees that under English common law, domicile was not relevant, and the children born to temporary visitors in the territory of the sovereign were always considered birthright citizens.
Well, Ms. Wang, I mean, everything you say strikes me as, yeah, that's -- that's the way I read it too, but then what are those 20 domicile words doing there? Like, you can, you know, take some of them and say I don't know, they were just summarizing the facts of the case, but not all of them. And why did they keep on, like -- why did they sprinkle that in the opinion?
Well, I think, again, that was -- those were the stipulated facts in the case. And it's clear we have textual evidence in the majority opinion that they were simply saying this is an a fortiori application of that controlling rule that comes from the English common law. Justice Gray writes again, after setting out the English common law rule and the exceptions with the single additional exception for children of members of Indian 1 tribes, that the amendment in clear words and manifest intent includes that children born within the territory of the United States of all other persons of whatever race or color domiciled within the United States. And, as was pointed out earlier, the very next part of that same paragraph, he cites to Webster talking about Thrasher's case and he says people who are born in this country owe allegiance independently of residents within -- I'm sorry, foreign nationals owe allegiance independently of a residence with the intention to continue such residence independently of any domiciliation and independently of taking any oath of allegiance, which is totally contrary to both the government's theory of dual allegiance or partial allegiance and to the theory of domiciliation.
I mean, I would -- I might agree with you if "domicile" had simply been sprinkled in the opinion, but in Wong Kim Ark, it's a long opinion, but it begins by saying here's the question, and it ends by coming back to the question, and it says here's the question, stated at the beginning of the 1 opinion: Namely, whether a child born in the United States of parents of Chinese dissent who at the time of his birth are subjects of the Emperor of China but have a permanent domicile and residence in the United States and are there carrying on business. And he states the diplomatic exception. And he says, for the reasons above stated, this Court is of the opinion that the question must be answered in the affirmative. So why put "domicile" in? Sometimes it's hard to figure out what is the holding of a case. Here, he tells us, this is the holding of the case. Why put "domicile" in there?
It's just something -- it's -- it's something irrelevant that he wanted to throw in? It's like, you know, whether a child born in the United States of -- of parents of Chinese dissent who once resided at a particular address in San Francisco, who attempted to enter the country at the Port of San Francisco, why put it in if it's irrelevant?
Well, Justice Alito, all I 1 can -- I'll give you two responses. The first is that, again, it was a stipulated fact. The second is that, regardless of what the judgment in the case was, which, again, was an a fortiori application of the rule of decision, the rule of decision in Wong Kim Ark has binding precedential effect. Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you have to follow that controlling rule of decision, and if you follow that rule, you get to the same result for people without domicile. Wong Kim Ark says six times in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant, that --
-- on that, what do we do with the fact that, after Wong Kim Ark, at least some authorities took the view that the non-domiciliary question wasn't decided, remained open, and even continued to press the 1 view that domicile is required? Now I know you've got a lot of good stuff on your side too, but what do we do with the fact that it -- many -- many sound legal authorities thought it remained an open question, even if one of them wasn't John Marshall Harlan?
I liked your example from Justice Harlan's lecture here in D.C. So here's what I would say. All of the government's citations in their brief generally either were rejected by Wong Kim Ark expressly if they predated Wong Kim Ark --
If we're trying to understand how the legal community understood what happened in Wong Kim Ark --
-- it seems to me it's a mess.
But maybe you can persuade me otherwise.
I -- I think I can, Justice 1 Gorsuch. First, as to the post-Wong Kim Ark authorities that the government cites, each one of them is inconsistent with Wong Kim Ark's reasoning or doesn't mention it at all. Most of them are -- have very little reasoning at all. And, in contrast, what we have on our side post-Wong Kim Ark is numerous federal court decisions around the time of Wong Kim Ark, between ratification and Wong Kim Ark, that said that domicile is not relevant. They cited Lynch versus Clarke, which, again, was about the daughter of temporary sojourners. We have the sixth edition of Kent, which was cited in Wong Kim Ark and, of course, was then cited after Wong Kim Ark was decided by many authorities, again, discussing temporary sojourners. Anyone who wanted to know what the law of citizenship was under the Fourteenth Amendment after Wong Kim Ark would go to the sixth edition of Kent, where he says in that footnote on page 38 that the rule was Lynch versus Clarke and temporary sojourners' 1 children are U.S. citizens. We have members of Congress speaking on the record on debates on immigration laws where they were finally passing these immigration restrictions that Senator Cowan wanted, and they all stated either that Lynch was the rule, that Attorney General Bates had stated the rule, again citing Lynch, or Kent, in stating the rule that everyone born in the U.S. is a citizen and saying, look, children of Chinese immigrants, these immigrants who are unwelcome, these immigrants that Congress is now trying to bar from entering the United States, if -- their children born in the United States are citizens. We have an 1896 -- so a couple years before Wong Kim Ark -- but an 1896 State Department regulation which said the U.S.-born children of foreign nationals are U.S. citizens excepting only the children of ambassadors. And then you have Marshall Woodworth, who was a U.S. attorney who writes in a Law Review article that he -- talking specifically about temporary sojourners' children, and he says: I don't think that's a good rule from a 1 policy perspective, but that's the general rule.
Can I offer a possible explanation for why Justice Gray made a point of putting "domicile" in what he said was the holding of the case, and it is this: Wong Kim Ark and his parents, had they come to the United States from Europe, could have been naturalized, but, because they were Chinese, they could not be naturalized. And they had done everything that they could to make themselves Americans by -- by establishing a domicile in the United States. And so that's what this was about. He -- he -- he couldn't get naturalized because of a racist law, but they had done everything they could to become part of the American society. At the time -- at the same time, there were many, many men who were horribly exploited, brought to the United States to work on the transcontinental railroad, to work in 1 mines. They were worked to death. They were treated horrifically. But they were not -- they were overwhelmingly men. There wasn't an indication that they were -- they would stay here, they could stay here. They didn't have permanent homes. And the opinion -- and the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wong Kim Ark was decided.
No, Justice Alito, I don't think that's a plausible explanation for why domicile is mentioned in Wong Kim Ark because, again, the controlling rule of decision based on the English common law and cases from Schooner Exchange to Lynch versus Clarke to State versus Manuel, which was the North Carolina decision that said, look, the rule in the United States from independence on has been the English common law rule, it's -- that explanation would be inconsistent if --
-- isn't -- isn't 1 that explanation -- I -- I take Justice Alito's point, and I think he actually makes a good one in the sense that it could be that Justice Gray emphasized domicile to help the public accept the outcome of this case. You're suggesting that the emphasis on domicile was not a part of the rule, meaning he wasn't saying you had to be like a foreigner who is doing everything they can and who can't be naturalized. But he might have emphasized those facts in this case precisely because Chinese immigrants were unwanted, precisely because he had to get this out into the public and people were going to say: Whoa, you're saying these people have -- this -- this baby has to be a citizen? And so one could imagine that it was important from a standpoint of helping people accept this citizen rule under these circumstances to emphasize that these particular people in this case were in Justice Alito's first category.
I think that is very possible, Justice Jackson. And, as evidence of that, I would point to the fact that if you 1 look at the briefing in Wong Kim Ark, you'll see that even though the parties had stipulated in the -- in the district court that Wong Kim Ark's parents were domiciled in the United States, when the case came to the Supreme Court, the government's brief argued that it was impossible for Chinese immigrants to have domicile because they expressed the view that was common among people who opposed immigration by Chinese nationals to the United States, there was a common view that Chinese people were inherently temporary sojourners in the country. And so I do think it's possible, Justice Alito and Justice Jackson, that he was trying to dispel that notion and tell the government --
Absolutely, that at least it reads as though he's trying to make -- to -- to -- to calm everyone down. These particular people were domiciled, but we're following the English common law rule. And when you look at the English common law rule, domicile is not a factor.
That's right. I think -- 1 you know, who knows why the majority opinion mentioned domicile. We know it's a stipulated fact. We know the government tried to renege on that stipulation and rely on this assumption on the part of anti-Chinese advocates at that time that Chinese people couldn't form a domicile in the United States. And he followed the English common law rule.
I just wanted to ask you a question about how the exceptions fit within the general rule. You've called them exceptions, and some of the common law sources call them exceptions, so I take that point. But, if we think of jus soli as tied to the territory and we look at the exceptions as territorial in a sense, then they seem kind of like natural outgrowths of that rule, and this is what I mean, and -- and -- and this is where I -- I want your help with how the exceptions played out in practice. If you look at Indian reservations as 1 unique places because Indians were quasi-sovereigns, separate nations in the American system, if you look at occupied alien territory as territory that's outside of the jurisdiction of the United States, and then, if you look at the diplomatic exception almost like diplomats and their children have little bubbles around them, like the embassy is really the territory of that country, and even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction, are those just applications of the rule? And, if they are, then what happens to alien enemies, like the German spies in Ex parte Quirin, or what happens to Indians who are actually not on the reservation but may be born, say, in Baton Rouge? How does the rule apply in those situations? Does it travel with the person, or is it tied in some sense to the land?
Sure. So let me answer each part in turn. So the thing that all of the exceptions have in common, again, is this sense 1 that the -- the person is -- has this fiction of extraterritorial -- extraterritoriality around them. Let's set aside the Indian tribal exception for a moment and come back to it. So the -- the example of enemy aliens, for example, Ex parte Quirin, is one that is answered by Justice Story in both Inglis and in Rice. And the touchstone under the American application of English common law was that in wartime, the touchstone is whether there's a foreign occupation of U.S. territory. So --
And that's -- just to interrupt for one second to clarify.
And that is territorial. Sometimes -- it just seemed to me that the rule varied. Sometimes it was stated as enemy alien and sometimes it was focused on occupied territory.
Sure. So -- so the rule -- I -- I don't think there's a separate rule for enemy aliens. And the government's briefs describe the exception as an enemy alien exception. I -- I don't think that is the best way to think about it. 100 Rice and Inglis tell you that when the British forces are occupying Castine, Maine, no one is subject to U.S. jurisdiction there because Britain is ruling -- is governing Castine, Maine. And Justice Story explains, look, if the U.S. then retakes that territory, people -- babies who are born to U.S. citizens by what he called post-limine become U.S. citizens. So that's -- that's the -- that's the way to think about any wartime situation, enemy aliens or otherwise. As we heard earlier, Professor Muller's amicus brief tells us how we've thought about enemy aliens in wartime. Even in World War II, when the United States was detaining Japanese nationals who were deemed enemy aliens of the United States, when those enemy aliens had babies in these detention camps, everyone agreed that those babies were U.S. citizens. And Professor Muller goes on to explain that, you know, there are many cases of those U.S. citizens going on to a lifetime of government service to the United States. 101 Everyone agrees those babies are U.S. citizens like everyone else. So, again, the touchstone for enemy aliens is --
-- is there an occupation.
-- Indians? What about the Indian who's off the reservation or born off of a reservation?
Sure. So, to start with the basics, the -- I'll refer to the Indian tribal exception just to use the term of art. The Indian tribal exception, Elk versus Wilkins tells us, comes from the constitutionally unique status of Indian tribes. In the Indian Commerce Clause, we know that tribes are treated as basically quasi-sovereign nations. We know that from the Marshall trilogy of cases. We know from Worcester versus Georgia, where Chief Justice Marshall said that the tribes are essentially distinct political communities --
Well, I understand all that.
So just in the 102 interest of time just to --
-- to focus you, how -- I understand why the Indians are treated differently for purposes of the law, but I want to know, is it tied to territory or is it tied to the status of someone as a member of a tribe? Because, if -- if you're looking at it because of the special relationship of Indians to the United States as a matter of the Constitution, et cetera, well, I mean, citizens of France are citizens of a different sovereign as well.
Sure. So Elk versus Wilkins doesn't really answer that question. The Court says there are two ways to look at this: Either you look at it as a tribal member is like an ambassador, or you can look at it like there's a territoriality issue where people are born on tribal lands and, therefore, they're essentially, I think he says, Justice Gray says at one point we might as well be talking about someone who's born in Mexico.
Well, there's a lot 103 in Elk --
-- and some of it's not terribly helpful for you, it seems to me, because Justice Gray, again, strikes again, says that -- that they may be subject in some degree or respect to the United States. So there's some jurisdiction. He says they're born with -- in the -- in the geographic limits, they are in a geographical sense born in the United States, but, because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside. And -- and that language sure sounds a lot like the Solicitor General's presentation today.
To the contrary, Justice Gorsuch. I embrace that part of Elk versus Wilkins' holding. Justice Gray, of course, wrote both Wong Kim Ark and --
I know. And it's a -- it's a struggle. (Laughter.)
Sure. Let -- let me try to 104 help you out with that. (Laughter.)
So, you know, the -- the -- the -- the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power, the government could have exercised plenary regulatory power over the tribes, and, therefore, that's the same situation as a foreign national in the United States. But that's actually not true, because, remember, if the -- the -- there's always this background notion. Whatever the parameters of the relationship between the United States Government and tribal nations at that time of ratification, there was this constitutionally distinct status of the tribes and tribal members, setting them -- excluding from apportionment, which came -- was, you know, renewed in the Fourteenth Amendment, and that's not true of foreign nationals. If the government were right that the question is what's the maximum theoretical power the government has, there would be no 105 ambassador exception because, of course, the United States could decide in some instance to go ahead and prosecute an ambassador. There would be inter-sovereign comity considerations there. That's how you define the exceptions. And, as Wong Kim Ark says, Elk versus Wilkins has no bearing on the question of foreign nationals.
Ms. Wang, on the earlier answer you gave to Justice Gorsuch on the temporary sojourners' cases, those were distinct cases, correct, where the parents had come to the U.S. and didn't want to give citizenship to their kids, took them out immediately, correct?
I'm sorry, Justice Sotomayor, I'm not sure which cases you're referring to.
All right. I'll -- I'll -- that, we can look it up.
Ms. Wang, would you agree that the citizenship test in the Fourteenth Amendment is the same as the test in the 1866 Civil Rights Act?
So the words are obviously different. What Wong Kim Ark tells us and what the debates tell us is that the Framers, there was -- it was the same Congress, obviously, framing both. Congress was trying to do the same thing with both the 1866 Act and with the Fourteenth Amendment. They wanted to capture the common law exceptions and the Indian tribal exception. They started out with the two separate phrases, "not subject to any foreign power" plus excluding "Indians not taxed." And as Justice Gray described it in his majority opinion in Wong Kim Ark, they decided to switch to the affirmative phrase, "subject to the jurisdiction" and --
Yeah. Well, do they mean the same thing? And wouldn't it be very odd if the citizenship test in the Fourteenth Amendment were broader than the citizenship test in the 1866 Civil Rights Act, particularly in the light of the fact that the -- the -- the 1866 Civil Rights Act was reenacted after the adoption of the Fourteenth Amendment and remained in place until 1940?
Sure. I -- the Framers were trying to do the same thing with the language in both.
Okay. So then I think we can turn to the language of the 1866 Civil Rights Act because it's more straightforward. You know, "subject to the jurisdiction thereof" is like the -- you know, the puzzle wrapped in an enigma wrapped in a mystery. (Laughter.)
But "not subject to any foreign power" is pretty straightforward. So let me give you these examples. A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth, and he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?
Not within the meaning of the 1866 Act, Justice Alito. And that's clear from Wong Kim Ark, and it's clear from the debates. What the Framers meant by the phrase "not subject to any foreign power" was referring to the ambassador exception. 108 If it meant what the government contends, basically, not a subject of any foreign power, that you were -- that another country considers you a jus sanguinis citizen, then lawful permanent residents, all foreign nationals, should be excluded.
Well, ordinary public -- ordinary public meaning of that would certainly encompass that boy, would it not?
Justice Alito, if you think that the language of the 1866 Act was ambiguous, as Wong Kim Ark says, the shift to the language of the Fourteenth Amendment, which is the operative text, certainly clears up any ambiguity.
Well, what I said about a boy born to an Iranian father is true of children born here to parents who are nationals of other countries. If I'm correct, it's true to a child who's born here to Russian parents. It's true to a child who's born here to Mexican parents. They're automatically citizens or nationals of those countries and have a duty of -- of military service. It sure seems like that's a -- that makes them subject 109 to a foreign power.
But, again, Justice Alito, that would have meant that the children of Irish, Italian, and other immigrants, which Wong Kim Ark refers to and the debate -- the Framers referred to, would not have been citizens either because, if the only test is whether that U.S.-born child is considered a citizen by another country under their jus sanguinis laws, then no -- no foreign nationals' children would be included in citizenship.
Well, all of -- in all of those cases, the parents could be naturalized, and then the children would be derivatively nationalized -- naturalized when the -- when the parents were naturalized. Wong Kim Ark -- I'm sorry. The red light is on.
Wong Kim Ark has a passage explaining how this Court should treat dicta, and it quotes something that John Marshall said. "It is well" -- this is quoting 110 from Wong Kim Ark: "It is well to bear in mind the oft-quoted words of Chief Justice Marshall: 'It is a maxim not' -- 'maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected but ought not to control the judgment in a subsequent suit when the very point is presented for decision.'" So does that fall within the, you know, "what's good for the goose is good for the gander" rule? That's how Wong Kim Ark treats what was said in the Slaughter-House case -- cases. Should we apply that same rule to Wong Kim Ark itself?
Wong Kim Ark tells you what to make of the Slaughter-House dicta. It was dicta. The issue of citizenship was not at play in Slaughter-House. And in contrast, the parts of the holding -- the parts of the decision that I alluded to are the controlling rule of decision. Again, we look to the English common law in construing the Fourteenth Amendment.
Thank you, counsel. Justice Thomas? Anything further, Justice Alito?
Well, just a couple more questions. So, if those who framed and adopted the Fourteenth Amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birthright citizenship rule, why didn't they refer specifically to those groups? Why did they adopt a general rule? They could have said all persons born or naturalized in the United States, excluding Indians not taxed and those ineligible under common law, are citizens of the United States and of the state wherein they reside. Or they could have said all persons born or naturalized in the United States, excluding Indians not taxed and the children of foreign ambassadors or foreign invaders, are citizens of the United States and of the state wherein they reside. But they didn't do that. They adopted a general rule. So what's the explanation?
I would say the -- Wong Kim Ark tells us what the explanation is, that the Framers of the Fourteenth Amendment, after overriding President Johnson's veto, wanted to adopt a universal rule with a closed set of exceptions, and they believed that "subject to the jurisdiction of the United States" did that. And that term does describe both the universal general rule and the common law exceptions with the sole additional American exception for tribal Indians.
Ms. Wang, I -- I don't -- I've not quite understood the Solicitor General's argument that lawful domicile somehow changes the U.S.'s dominion over a person or allegiance. Even in Justice Alito's examples, if your parents are Iranian, if you get permanent -- lawful permanent residency here, that child still, by their laws, when it leaves the United States, must serve in the Iranian Army, correct?
Well, I -- I don't know the 113 answer to that. What I can tell you is that under Wong Kim Ark, the Court says we don't care about problems of dual nationality. We don't look to other countries' laws in construing our Fourteenth Amendment.
Well, it was undisputed there that Wong Kim Ark's parents owed loyalties to China, correct?
What I'm saying is, even if you become a permanent resident, you're not a U.S. citizen.
So your primary loyalty still remains with your citizenship country, wherever you came from.
That's right, Justice Sotomayor. I take your point now.
And you understand what I'm saying. And during temporary -- whether it's lawful or unlawful, temporary presence in the United States, you are subject to the U.S. laws, correct?
That's right. The -- the question that the Fourteenth Amendment asks is 114 whether the U.S.-born child is subject to U.S. jurisdiction when they're born.
Meaning are they within the U.S. territory?
Exactly. Other than people covered by that closed set of exceptions.
That's right. The -- in other words, the -- the government's rule, which really is looking at whether someone has a divided allegiance because they're a citizen of another country, would exclude the children of all foreign nationals, and that isn't what they're saying.
Exactly. So the only way that allegiance, lawful or unlawful, can -- has no play in this question?
I would say that the relevance of allegiance is the relevance under the English common law rule that's embodied in the Fourteenth Amendment. All persons born in the territory of the sovereign owe natural allegiance. Those temp- --
Except for the limited -- three limited exceptions?
I think I'd like to take you back to the first question that Justice Alito asked General Sauer, and it was this question of what do we do if we think we have a new problem that didn't exist at the time of the Fourteenth Amendment. I don't think, actually, that the U.S. Government argues the case this way, but -- but let's put the U.S. Government's arguments aside and just ask something like: Well, everything that you're saying would suggest an answer to the question of people who -- the children of people who are temporarily in the U.S. but here lawfully. Is there any way that there might be a different answer with respect to the children of people who are here unlawfully because of this new problem issue that Justice Alito has raised?
No, there is no difference. And, of course, the government's arguments as to people who are unauthorized immigrants in this country all runs through and hinges on 116 their domicile requirement. The first thing I would say in response is that, once again, it's crystal-clear from Wong Kim Ark and from the debates that the Framers of the Fourteenth Amendment meant to have a universal common law rule of citizenship subject to the closed set of exceptions. And we can't take the current administration's policy considerations into account to try to reengineer and radically reinterpret the original meaning of the Fourteenth Amendment. The second point I would make is that, in fact, the Framers did consider the concept and the actual problems of immigration that were coming up at that time. In addition to this, you know, notable exchange between Senator and Cowan -- Senator Cowan and Senator Conness, where Cowan says, if we have the Citizenship Clause as part of the Constitution, we are going to encourage these gypsies, what he called gypsies, Roma, in Pennsylvania, whom he characterized as invaders, trespassers, and-law breakers, we'll encourage them to come into our country because 117 their children will be citizens. He says, Senator Conness, in your state of California, you'll be facing a mass flood of Chinese immigration if we adopt the citizenship rule. And Senator Conness, himself an Irish immigrant, says: Yes, and I am voting for that because I believe in citizenship by virtue of birth without regard to parentage. And the third point I would make is a -- an historical one, which is that recall that at the time the Framers are -- are thinking about birthright citizenship, we're -- there have just been 15 or 20 years of unprecedented immigration from Ireland. There were -- the Know Nothing party was dominant in the 1850s, just a decade earlier, and they were vehemently opposed to Irish immigration. They believed Irish Catholic immigrants were unassimilable and could never become Americans. But even the Know Nothing party members of Congress believed that the children born in the United States to those Irish immigrants were citizens like anyone else. That's the intuition that the Framers of the Fourteenth Amendment had. 118 Contrary to the -- to the government -- the government's arguments now, they wanted to grow this country, they wanted to make sure we had a citizenry to populate the military, to settle the country, and they -- they -- they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.
Justice Gorsuch? Justice Kavanaugh?
On Lynch v. Clarke, which you cite several times in the brief and today, which I appreciate, the government's response is that that decision was questioned at the time and went unmentioned in congressional debates about the Fourteenth Amendment. I just want to get your response to that point on Lynch.
Sure. Not true. Though the Lynch was not specifically mentioned by name in the Fourteenth Amendment debates, it was a couple months earlier in the debates on the 1866 Act, where Senator Trumbull -- I'm 119 sorry -- Senator Lawrence talks about the great case of Lynch versus Clarke, where it was conclusively shown that all children born here are citizens without any regard to the political condition or allegiance of their parents. And then, of course, they discuss the children of temporary sojourners elsewhere without mentioning Lynch.
I just want to isolate a point that you've mentioned, which is, if the Fourteenth Amendment used the phrase "not subject to any foreign power," I think you have a much tougher argument, and then earlier, I think you indicated that they -- that's what they meant even though they didn't say it. I just want to give you a chance to unpack that because I think that's a --
If it said that, I think our history would be a little different and I think the text, even put aside the history because that's speculation, the text would be quite a bit different.
Sure. So let me answer in 120 three parts. The first is that Wong Kim Ark tells us that -- you know, the Court already dealt with this and said, look, the Framers were trying to do the same thing with the language of the 1866 Act. To the extent you think that the language is ambiguous or not as good, let's look at the operative text, "subject to the jurisdiction thereof." The second point I would make is that it's clear from the debates that the Framers, in using the phrase "not subject to any foreign power," were thinking about ambassadors. And I -- I believe that Senator Wade at one point says: Well, I wanted to start with the phrase "all persons born in the United States are U.S. citizens," but then I thought: Oh, wait, we have these temporary visitors. In fact, the government points to this quote. He says: So there are these temporary visitors we can't make citizen -- their children -- and we can't make their children citizens. That's ambassadors. And that's very clear from that.
So, if that had been the text, your argument would be that was understood to be narrower than its text would 121 read?
But that's not the text, so I guess we don't need to deal with that.
Sure. And that brings me to my third point, which is you can't read "not subject to any foreign power" the way the government urges you to without making the children of all foreign nationals non-citizens. And that's clearly not what the Framers were doing.
Justice Alito and Justice Kagan raised an interpretive question that I think is important, which is are the exceptions -- you've used the word "closed" many times -- frozen, or do we reason by analogy to the exceptions that existed based on things that were unforeseen at the time? This comes up in the Second Amendment now. It comes up in free speech law.
And how do we think about whether it's possible that there could be an additional exception based on 122 modern circumstances, reasoning by analogy to the exceptions that exist? And I'm thinking in particular about the non-citizens unlawfully in the country, not the temporary part but the non-citizens unlawfully in the country.
Could you reason by analogy, you've used the phrase, the -- several times, I think, the fiction of extraterritoriality, and could that apply and, if not, why not?
Sure. So, here, I agree with Professor Whittington, who says that the government's position here is not positing a new application of the rule but a challenge to the rule itself. And I think that's right. We know that the Fourteenth Amendment's rule does provide for a universal rule with a set of closed exceptions. Wong Kim Ark says so at least twice. It says in an earlier passage that the Framers were not trying to introduce any new exceptions. To the contrary, they were trying to foreclose any caste-creating exceptions like the Court had 123 created in Dred Scott. The second reason we know this is that the debates themselves had the Framers saying, number one, we are doing -- we are declaring what is already the law in this country at least for white Americans, and we are putting any further exceptions to birthright citizenship outside the reach of any future Congress. They were very concerned about that. That's the whole impetus for the Citizenship Clause. And the third -- the third thing I would say is that -- that -- that -- that it would be contrary to the central purpose of the Fourteenth Amendment Citizenship Clause to admit new exceptions. For all those reasons, the entire history of the Citizenship Clause is -- is -- is -- is driven by the notion that we don't want to have any other exceptions.
And then, relatedly, just a separation-of-powers point but get your answer. I understand your point about the Executive Order, but Congress's authority under Section 5 of the Fourteenth 124 Amendment, I guess the answer you just gave means they don't have any authority to look at this. Even if they passed it 435 to zero in the House and a hundred to zero in the Senate and said we're carving out a new, by analogy to the existing categories, a new exception, your point is no, they're closed, they're frozen forever?
Correct. And the way I would put it is that the Citizenship Clause of the Fourteenth Amendment, again, has a universal rule with a closed set of exceptions. Congress -- it sets a floor. So the Congress has under the Naturalization Clause the power to expand citizenship to other people not covered by the Fourteenth Amendment, and, obviously, they have in many ways, but they can't go below that floor that -- that the -- the Constitution sets.
I think Mr. Sauer acknowledged that, and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So that could be a -- if we did agree with you on Wong Kim Ark, that could be just a 125 short opinion, right, that says the better reading is Respondents' reading, government doesn't ask us to overrule, affirmed? Is that --
That's that -- then last question, though, why would we address the constitutional issue -- this is the last one -- why would we address the constitutional issue given your argument on the statutory -- our usual practice, as you're well aware, of course, is to resolve things on statutory grounds and -- and not to do a constitutional ground.
Sure. You know, I think we obviously have these two paths to a win here. We're happy to win on either or both of them. I do think it would be prudent for the Court to reaffirm its decision in Wong Kim Ark where it's a landmark decision about the definition of national citizenship in this country. I just think it would be prudent for the Court to go ahead and reaffirm that. But, of course, we're happy to take a win on any 126 ground.
Justice Jackson? I'm sorry, Justice Barrett? (Laughter.)
So I have a question about the exceptions again. So, in your interchange with Justice Kavanaugh just now, you were talking about it as a closed set of exceptions. And said that way, it sounds like exceptions that people had in mind at the time of the ratification but that were not explicit in the amendment. But I took your brief to be arguing that "subject to the jurisdiction thereof" is the language in the Fourteenth Amendment that refers to those exceptions. Am I right?
It describes them. And would you say -- this goes back to 127 a question that Justice Gorsuch asked General Sauer. Our relationship to the Indian tribes is different today than it was at the time that the Fourteenth Amendment was ratified. Let's put aside Section 1401. Is an -- a tribal Indian born on a reservation today, on tribal land, a natural-born citizen under the Fourteenth Amendment?
Under the Fourteenth Amendment, no. Of course, Congress has provided for citizenship for all tribal members in the 1924 Act.
The by statute -- by statute. And so is that because what "subject to the jurisdiction of" meant? When you say "closed set of exceptions," it means that the jurisdiction as it existed in -- at the time of the Fourteenth Amendment is still the jurisdiction today?
To be -- let me just be a little bit clearer.
Justice Kavanaugh asked you if we could create new categories by 128 analogy. So there may be other sorts of people who are present here to whom this "subject to the jurisdiction" in the same way that we were talking about, you know, the bubbles around ambassadors or the soil of occupied territory or the soil of tribal land. Perhaps there -- those new carveouts could exist by analogy today, like, if the United States carved out some portion of some state and suspended it from its jurisdiction. Wouldn't the principle still apply?
No, Justice Barrett, for two reasons. The first is, again, that there is a closed set.
The language doesn't say it's closed.
Sure. It's closed -- we know it's closed because Congress says the very purpose of the Citizenship Clause was to foreclose new exceptions. That's clear from the debates. And I would say that the language 129 describes a closed set as well because it's -- you can't imagine another situation -- the government is trying to make us imagine another situation, right? They say, look, what if Congress, in order to do an end-run, in order to change the meaning of the Fourteenth Amendment as to unauthorized immigrants' children, Congress can say we are not going to exercise jurisdiction.
Well, not quite, because it's redefining jurisdiction. It's not quite analogous, right, because the government's domicile theory is a little bit different than the jus soli theory, right?
I'm just saying that in the second step of their argument as to undocumented immigrants, where they have to get around the fact that undocumented immigrants by and large are domiciled --
-- in the United States, they're trying to say, look, we're going to -- we're going to manipulate the law either to 130 define domicile or to carve out to say -- just wave a magic wand and say these babies are not subject to the jurisdiction of the United States. There's still a missing factor under that original meaning of the -- of -- of the Fourteenth Amendment, and that's that there is another sovereign who can exercise jurisdiction over this person even though they're in the United States. And this gets me back to a question you asked, Justice Alito. The -- the difference between an ordinary non-ambassador foreign national and everyone who's subject to one of those jurisdictions is that even if -- if you take the government's argument and say a foreign national is subject to their country of nationality's jurisdiction in the United States is actually not true. If I'm a French national in the United States, France cannot come into the United States, arrest me, and try me for a crime under French law. And that's what sets ordinary foreign nationals apart from ambassadors --
Well, no, I mean, I 131 understand -- that wasn't quite the hypothetical. I understand that. Let me just ask you --
No, that's okay. Let me just ask you one last question --
-- about Indians. So I gather what you're saying is that Congress cannot expand the set of, we'll call them, exceptions, right? But you're saying it can't contract them either, and that was the Indian example. So what if, again, putting aside Section 1401, what if our relationship with tribal Indians has changed so much that we would say, no, Indians really are fully subject to the jurisdiction of the United States in the way any other, you know, natural-born citizen is? You're saying that that doesn't change the constitutional status of Indian citizenship?
Let me be clear. What I'm saying is that the meaning of the Fourteenth Amendment is the -- we have to go with the 132 original public meaning. And, obviously, at the -- at the very time that the Framers were, you know, thinking about the Fourteenth Amendment, at the time of ratification, that relationship between the United States and tribal nations was in flux, right? The government has made various arguments about Congress's authority, but the way the Framers thought about it and the way that Wong Kim Ark describes it is that there was a unique constitutional status unlike any other relationship between sovereigns in all the world between the United States and the Indian tribes. And that is what gave rise to the preexisting exclusion of Indian tribe -- tribal members from U.S. citizenship, and that's what the Fourteenth Amendment captures.
So I want to understand how you are responding to the government's argument that because temporary visitors and undocumented immigrants are still governed by their home countries, and in the 133 government's take on this, you can't have two -- you can't have allegiance to two different sovereigns, those groups can't have the requisite allegiance to be subject to the United States for the purpose of the Fourteenth Amendment. That's what I hear the government saying. But I do think that that seems to rest on a different understanding of allegiance than what was in the English common law and that when we understand what the English common law thought about allegiance, you can see that you can have allegiance to two different sovereigns at the same time. This kind of goes back to Justice Alito's questions. I mean, I was thinking about this, and I think they -- there are various sources that say this, that you can have -- you obviously have permanent allegiance based on being born in whatever country you're from. That's what everybody recognizes. But you also have local allegiance when you are on the soil of this other -- other sovereign. And I was thinking, you know, I'm -- I'm -- I, a U.S. citizen, am visiting Japan. 134 And what it means is that, you know, if I steal someone's wallet in Japan, the -- the Japanese authorities can arrest me and prosecute me. It's allegiance meaning can they control you as a matter of law. I can also rely on them if my wallet is stolen to, you know, under Japanese law, go and prosecute the person who has stolen it. So there's this relationship based on -- even though I'm a temporary traveler, I'm just on vacation in Japan, I'm still locally owing allegiance in that sense. Is that the right way to think about it? And, if -- if so, doesn't that explain why both temporary residents and undocumented people would have that kind of "allegiance" just by virtue of being in the United States?
That's absolutely right, Justice Jackson, and that comports with the plain text of the Fourteenth Amendment as it applies to everyone born in the United States. Other than those subject to the -- to the exceptions that were baked in, a closed set, you owe natural allegiance as a U.S.-born citizen. 135 If you want to look at the parents of those people, and let's say the parents are foreign nationals but not ambassadors, the parents owe temporary allegiance --
So the babies get the permanent allegiance piece of this, and the parents get the local allegiance piece of this. So, to the extent we're looking for allegiance, we have it?
Thank you, counsel. Rebuttal, General Sauer? REBUTTAL ARGUMENT OF GEN. D. JOHN SAUER ON BEHALF OF THE PETITIONERS
Thank you, Mr. Chief Justice. Justice Kavanaugh, turning to Lynch against Clarke that you raised -- it didn't come up when I was talking about it -- keep in mind that we said that it was questioned at the time. It's questioned by a higher court in the 136 same state, the State of New York, and the Ludlam decision in 1860 specifically said that someone who's traveling or sojourning abroad, though born in a foreign country, is not born in foreign allegiance. So, obviously, there is tension within that very state, and that's what contemporary commentators noted. And I'd make a more fundamental point about that. Lynch is not interpreting the Fourteenth Amendment because it predates it. So it's not looking at the language of the Fourteenth Amendment. It's looking at, you know, what does the word "citizen" mean, for example, in the clause. So there's an anachronism to their reliance on it. And I think that turns to a point that Justice Alito emphasized, that once you get to that language of the 1866 Civil Rights Act, where Congress said "not subject to any foreign power," clearly, we are no longer dealing with the British conception of allegiance because Calvin's case and Blackstone say whether you're subject to another foreign power is irrelevant to whether or not you become a citizen. So, again, the concession that I heard 137 to be made that those two mean the same thing, which this Court held in General Building Contractors that the Civil Rights Act has the same scope as -- as the Citizenship Clause of the Fourteenth Amendment, once -- once you're saying not subject to any foreign power, Congress has clearly departed from the common law, the British conception of allegiance, that monarchial conception of allegiance. They have adopted the Republican conception of allegiance. And there's all kinds of evidence going back to the late 1700s that that's the way they thought about it. And there was a reference, I think, in my friend's presentation about the Marshall Woodworth treatise from the late 1890s. That treatise also, just like Lynch against Clarke, the -- the language they quote is actually describing the case or -- or the law, the status of the law before the adoption of -- of -- of the Fourteenth Amendment. So -- but, if you actually look at the treatises we cite, again, I mean, you know, Wharton, Morris, Justice Samuel Miller of this Court, Lesser, Black, Hall, Winchester, Taylor, 138 Westlake, Bellott, there's this consensus going from the time of the Fourteenth Amendment onward and they're looking at the specific question of temporary -- temporarily present individuals in the jurisdiction, all those sources say their children are not citizens. And that goes both before and after -- after Wong Kim Ark. You see a similar consensus actually in the congressional debates where, whenever it comes up, temporary sojourners, it's understood, the context indicates it's clearly understood that those children are not citizens. And I would be -- therefore, finish where I began with drawing a stark contrast and -- and turn back to the first question that Justice Thomas acted, that Republican Congress in 1866 had a very, very clear understanding that the children of the newly freed slaves have the requisite allegiance to the United States. This was all about overruling the -- the grave injustice of Dred Scott and making sure that that allegiance was granted to the children of slaves. 139 However, you have this contrast of a very, very strong impressive consensus both in the original understanding in the -- in the congressional debates and carrying over into commentators for 50 years afterwards that the children of temporary sojourners are not covered. And for those reasons, we ask the Court to reverse.
Thank you, counsel, General. The case is submitted. (Whereupon, at 12:33 p.m., the case was submitted.)