This is the third in a series of four pieces concerning the ongoing challenges to the legality of President Donald Trump’s Executive Order No. 14160 (the “Citizenship Order”), which declares that two categories of persons born in the United States to foreign nationals are not birthright citizens.
The Citizenship Clause of the Fourteenth Amendment and the federal citizenship statute, 8 U.S.C. § 1401, both guarantee that all persons born in the United States are citizens of the United States if they were also born “subject to the jurisdiction thereof.” All parties in the various suits agree that the validity the Citizenship Order turns on the proper application of the constitutional and statutory phrase “subject to the jurisdiction thereof.”
In the second post in this series, Marty analyzed the Department of Justice’s primary, and superficially most plausible, argument, which asserts that the plaintiffs’ and lower courts’ understanding of “subject to the jurisdiction thereof” cannot be right because it doesn’t account for at least two of the well-established exceptions for categories of persons (children of diplomats and members of Indian tribes) who are not U.S. citizens despite their birth in the United States. In that post, Marty explained why the reading adopted by the Supreme Court in Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898), which turns on whether the federal government has subjected the newborn child to its “complete” regulatory jurisdiction, does, in fact, comport with and explain the established exceptions to the birthright citizenship rule.
This article addresses two other aspects of DOJ’s defense of the Citizenship Order.
In Part I, we explain why the alternative reading DOJ has offered for “subject to the jurisdiction thereof,” which depends on whether the person was “domiciled” in the United States at the moment of birth, cannot be reconciled with the rationale of the Supreme Court’s governing opinion in Wong Kim Ark.
In Part II, we highlight an important, and widely overlooked, characteristic of DOJ’s briefs, namely, that DOJ’s “domicile” argument is almost entirely devoted to defending the Citizenship Order’s denial of citizenship to the second (and less numerous) category of persons identified in Section 1 of that Order—i.e., persons whose fathers are not citizens or legal permanent residents (LPRs) and who were born in the United States to mothers who were lawfully but temporarily present in the country (for example, on a work or student visa). As we’ll discuss, DOJ offers virtually nothing in support of the Order’s declaration that the first, and much larger, category of persons—those whose fathers are not citizens or LPRs and who were born in the U.S. to mothers who, on the date of birth, were not legally authorized to be in the country—are not birthright citizens.
The final piece in this series will address plaintiffs’ (and certain amici’s) statutory argument, which is independently sufficient to demonstrate the unlawfulness of the Citizenship Order. That article will explain that DOJ’s argument about the relevant enactments is based upon an unconvincing account of how the political branches understood the Court’s decision in Wong Kim Ark and the scope of application of the Citizenship Clause when they enacted and then reenacted the birthright citizenship provision in 1940 and 1952.
I. DOJ’s Domicile Argument
DOJ’s briefs in support of the Citizenship Order consistently begin with a “negative” argument that the plaintiffs’ (and district courts’) reading of “subject to the jurisdiction thereof” can’t be correct in light of certain of the established, agreed-upon exceptions to citizenship for persons born in the United States. In the previous article, Marty explained why the Supreme Court’s reading of the clause, which the plaintiffs embrace, actually can be reconciled with, and explain, all three of the established exceptions.
Even if DOJ’s critique of the plaintiffs’ reading had greater force, however, that wouldn’t be enough to defend the Citizenship Order because DOJ would still need to offer a plausible alternative understanding of “subject to the jurisdiction thereof” that somehow excludes the two categories of U.S.-born persons described in the Order. Yet thus far it has been unable to do so.
DOJ’s proffered alternatives have evolved over the course of the litigation. In its initial briefs in the district courts, DOJ argued that a person born in the United States is “subject to the jurisdiction” of the United States only if he or she is both bound to comply with U.S. law and also is not subject to the jurisdiction of, and has no allegiance to, any foreign nation. In an earlier Just Security article on the birthright citizenship cases, Marty explained why the Supreme Court’s binding precedent in Wong Kim Ark forecloses that reading, given that Wong Kim Ark and his parents themselves had at least some allegiance to China.
DOJ wisely no longer relies upon that argument. Its most recent appellate briefs, however, do include an echo of that previous argument: In various places, DOJ asserts that a newborn is only “subject to jurisdiction” of the United States if the child’s “primary allegiance” is to the United States. (See, for example, its opening brief in New Hampshire Indonesian Community Support v. Trump at 12.) In another Just Security article, John explained that DOJ’s reliance on the concept of “primary allegiance” draws no support from Wong Kim Ark or the legislative history of the Fourteenth Amendment and appears to have been made up for the purposes of this litigation.
There are other problems with this “primary allegiance” argument, too. For example, DOJ never explains what it means to have “primary” allegiance to a nation other than the United States. What’s more, and as we explain in Part II, below, to the extent DOJ is referring to a person’s obligations when U.S. law conflicts with the law of the parents’ home country, a “primary allegiance” test wouldn’t serve as a defense of the Citizenship Order because in such a hypothetical case of clashing laws, the person (and their parents) would be required to comply with U.S. law as long as they are present in the United States.
Unsurprisingly, then, in its recent briefs and oral arguments DOJ has placed greater emphasis on yet another argument—namely, that a person born in the United States is not then “subject to the jurisdiction thereof” unless that person was domiciled in the United States at the time of her birth.
Before explaining why this argument, too, does not work, it’s helpful to pause and consider what it might mean for a child to be “domiciled” in the United States. In the Nineteenth Century, domicile was predominantly used in the common law as a measure to determine certain choice-of-law questions, such as which state’s inheritance law would govern a particular dispute. And it was well-established that the domicile of a newborn child was that of his or her parents. See, e.g., Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic ch. III, § 46; Lamar v. Micou, 112 U.S. 452, 470 (1884).
Determining the parents’ domicile, however, was often no easy task. Perhaps the most well-accepted definition of domicile was the one expressed by Justice Joseph Story in his Commentaries on the Conflict of Laws, Foreign and Domestic. (Story edited three versions of the Commentaries before his death. The quotations here are from the third edition, published in 1846.). Story wrote (id. § 43) that “that place is properly the domicil of a person, in which his habitation is fixed, without any present intention of removing therefrom.” See also Albert Venn Dicey, Conflict of Laws 730 (1896) (noting that Story’s definition “may be considered to approach more nearly than any other to an approved or authorized description of ‘domicile’”); id. at 735 (“all the best definitions agree in making the elements of domicil ‘residence’ and ‘animus manendi’”); Mitchell v. United States, 88 U.S. 350, 352 (1875) (“Domicile has been thus defined: ‘A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.’”) (quoting Guyer v. O’Daniel, 1 Binney 349, 352 (note) (Philadelphia Orphan’s Court, 1806)).
Although this two-part test, or something similar to it, was widely accepted for use in deciding choice-of-law questions, that did not mean that it was simple to determine whether the test was satisfied in any particular case. To the contrary, as Story acknowledged (ch. III, § 45), “[i]t is sometimes a matter of no small difficulty to decide, in what place a person has his domicil” because of the uncertainty of both conditions. A person’s “residence is often of a very equivocal nature; and his intention as to that residence is often still more obscure.” As to the latter condition, Dicey reported, just before Wong Kim Ark, the common view of English judges that an individual’s intent to remain indefinitely in a place of habitation was often “of a very indefinite character, and as to the existence of which the Courts often have to decide without possessing the data for a reasonable decision” (p.732). Because of such uncertainties, courts had developed an elaborate array of presumptions, and rules of thumb, to assess domicile. Story himself identified no fewer than seventeen “of the more important rules, which have been generally adopted, as guides in the cases” bearing on the two basic preconditions for domicile (ch. III, § 46; see id. §§ 46-47 (describing them)).
Absent any specific evidence to the contrary, it seems difficult to imagine that the framers of the Fourteenth Amendment, or the Court in Wong Kim Ark, intended to ground birthright citizenship on a condition that was developed for such different purposes and that is often, in application, so complex, uncertain, and context-dependent. In its effort to rest its defense of the Citizenship Order on domicile, DOJ never addresses these difficulties. Nor does DOJ contend with its argument’s most conspicuous problem—namely, that the text of the Citizenship Clause doesn’t refer to a newborn’s “domicile.” If the framers intended to make U.S. domicile a precondition of birthright citizenship, they could have said so expressly, instead of requiring that birthright citizens be born subject to U.S. “jurisdiction.” What’s more, in most or all other legal contexts, a sovereign’s “jurisdiction” over a person does not turn on whether the person is domiciled (as opposed to merely present) in the sovereign’s territory. Texas, for instance, generally has jurisdiction to govern the conduct of persons while they are passing through the state, and to sanction such visitors for violating Texas law while they are present, even if they aren’t domiciled there.[1]
DOJ nonetheless insists that being “subject to the jurisdiction” of the United States depends upon whether a newborn was a “domiciliary” of the United States on the date of birth. It’s not difficult to see why DOJ is doing so—namely, in order to offer some basis for defending the Citizenship Order in light of its obvious legal infirmities. Moreover, by relying on domicile in this way, DOJ might appear to be aligning itself with the Supreme Court’s decision in Wong Kim Ark. As DOJ emphasizes, Justice Gray’s opinion for the Court noted three times—in the opening paragraph (p.652), in describing “the question presented by the record” (p.653), and in the closing paragraph stating the Court’s holding (p.705)—that Wong Kim Ark’s parents “enjoy[ed] a permanent domicil and residence … at San Francisco.” (Because the law treats a newborn as domiciled where her parents are, Wong Kim Ark himself was also a domiciliary of California when he was born.). According to DOJ, because of these references to Wong Kim Ark’s parents’ domicile in California, including in the passages announcing its holding, the Court’s decision in Wong Kim Ark is not controlling on the question of whether the Fourteenth Amendment confers citizenship upon one born in the United States to parents who aren’t domiciled here—a question the Court didn’t need to reach in Wong Kim Ark itself.
That purported ground of distinction with respect to Wong Kim Ark doesn’t wash, however. In making this and other domicile-based arguments, DOJ is disregarding the ratio decidendi of Wong Kim Ark—the “fundamental rule of citizenship” (p. 693) that the Court used to decide the case—in favor of the Court’s application of that broad principle to a particular fact pattern. The whole point of Justice Gray’s long and detailed analysis of the history and tradition of natural born citizenship in the United States and its counterparts in English and European law (pp. 655-675) was to extract this fundamental rule, which the Court also held—correctly—the framers had codified in the Citizenship Clause (pp. 675-676). It would be exceedingly odd to read Justice Gray’s opinion as suggesting that domicile is necessary for birthright citizenship, or even as reserving that question, given the nature of that opinion. As Chief Judge David Barron remarked during the recent oral argument in the U.S. Court of Appeals for the First Circuit, Gray’s opinion was anything but a slapdash affair; on the contrary, he “decide[d] to spend every waking hour … going through the entire history of everything, and lays it out paragraph-by-paragraph, case-after-case.” If Gray thought domicile might be determinative, surely he would have said so directly somewhere in that extensive discussion. Yet nothing like that appears anywhere in the many pages of Gray’s opinion.
Moreover, DOJ hasn’t pointed to any compelling evidence outside the four corners of Wong Kim Ark as a basis for insisting upon U.S. domicile as a precondition of being “subject to” U.S. “jurisdiction” at birth. DOJ’s case for such a requirement relies almost entirely on the fact that some within “the legal community” in the years between 1868 and 1898—including one state court and several commentators—concluded that the Citizenship Clause does not encompass children born of parents temporarily visiting the United States. See Brief for Appellants in New Hampshire Indonesian Community Support at 26-29.[2] DOJ doesn’t explain, however, how those actors could have validly concluded that such visitors were not “subject to the jurisdiction” of the United States, given that the visitors plainly were subject to U.S. law and entitled to protection from the United States while present here. Indeed, in an 1872 decision involving who is subject to prosecution for treason, the Supreme Court explained that “‘[t]he rights of sovereignty … extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection.’” Carlisle v. United States, 83 Wall. 147, 154 (1872) (quoting Wildman’s Institute on International Law) (emphasis added).
During the recent oral argument in the U.S. Court of Appeals for the First Circuit, counsel for the Government focused less on the opening and closing passages in Wong Kim Ark than on this passage from page 693 of the opinion:
The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Standing alone, and stripped of their context, these two sentences might be read to suggest that domicile is required in order for a newborn to be “subject to the jurisdiction” of the United States. A closer reading of Wong Kim Ark, however—including Gray’s articulation of the “fundamental rule of citizenship” in the sentence immediately preceding those two—reveals that this is hardly the case. Gray referred to “domicile” in the sentences quoted above in order to explain that the Amendment “includes” as citizens those in Wong Kim Ark’s circumstances, rather than to establish domicile as a necessary precondition. Indeed, although Wong Kim Ark itself did not involve a nondomiciled newborn, the Court was hardly agnostic on the question of whether a nondomiciliary born in the United States is “subject to” U.S. “jurisdiction.” In fact, the Court in Wong Kim Ark effectively rejected the view that domicile is a necessary condition of birthright citizenship—and (as we explain below), did so even in the very paragraph on which DOJ relies. DOJ’s contrary view depends upon a serious misreading of the Court’s opinion.
Several passages of the Court’s opinion, and the understandings of the two dissenting Justices, are of particular relevance in this respect:
a. The first important discussions occur on pages 656-657 of Justice Gray’s opinion for the Court, in the midst of his exegesis of the British common law rule. On page 656, Gray discussed the 1869 English case of Udny v. Udny, in which both Lord Chancellor Hatherley and Lord Westbury held that the question of domicile was distinct from that of allegiance. As we elaborate below, Gray’s discussion of Udny alone calls into question DOJ’s domicile argument. Gray then turned, on page 657, to Lord Chief Justice Cockburn’s review of “the whole matter” in his volume on Nationality, also from 1869. In a passage quoted by Gray, Cockburn wrote: “By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.” (Emphasis added.) Here, then, Gray was explaining that the common law rule, which (the Court held) the framers incorporated into the Fourteenth Amendment, provided citizenship to persons born while their parents were “temporarily sojourning” in the country.
b. The next important passage appears on page 664, in the midst of Justice Gray’s discussion of the way in which the common law was understood in the United States before ratification of the Fourteenth Amendment: “That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth,” wrote Justice Gray, “does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship.” Gray’s reference was to Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch. 1844). In that case, counsel for Julia Lynch argued that she was a citizen because her parents had an intent to remain in the United States when she was born, but the Vice Chancellor rejected that argument because her father demonstrated “his constant wish to return [to Ireland] during his stay,” and there was no “proof of his expressing an intention, or even expectation of remaining here, or of his taking any step towards acquiring the character of a citizen of the country.” Id. at 638. The Vice Chancellor nevertheless held that, despite this absence of the intent that would be required for domiciliation, Julia Lynch was a natural-born U.S. citizen due to the fact that she was born in New York “of alien parents, during their temporary sojourn,” id.
DOJ may be right (see its reply brief in New Hampshire Indonesian Community Support at pp.14-15) that the decision in Lynch didn’t reflect a “universal” view when it was written in 1844. The important point for present purposes, however, is that the Supreme Court in Wong Kim Ark plainly agreed with Lynch’s view of what the common law prescribed. Indeed, the Court noted that “[t]he same doctrine was repeatedly affirmed in the [federal] executive departments” in the years after Lynch, including in an 1862 opinion by Attorney General Edward Bates. See Citizenship of Children Born in the United States of Alien Parents, 10 Op. A.G. 328 (1862). In that opinion, Bates wrote that “I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.” Id. at 328.
Significantly, Attorney General Bates didn’t suggest any exception for the children of temporary visitors. To the contrary, although Bates noted that he “might sustain this opinion by a reference to the well settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our Government in extending and recognizing these rights, and enforcing these duties; and, lastly, to the dicta and decisions of many of our national and State judicial tribunals,” he reasoned that no such elaboration was necessary because “all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke,” and thus Bates simply “refer[red] to his opinion [in Lynch] for a full and clear statement of the principle, and of the reasons and authorities in its support.” Id. at 328-29.
Justice Gray favorably cited both Lynch and the Bates opinion in Wong Kim Ark. See also In re Look Tin Sing, 21 F. 905, 909-10 (C.D. Cal. 1884) (Field, J., for a three-judge court) (likewise approving of the analysis in Lynch).
c. At page 666, Justice Gray further explained that at the time of the adoption of the Constitution in 1789, “and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, ‘citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,’ and ‘mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil” (emphasis added). In other words, what Gray understood to be the general European rule of citizenship at the time—which was, along with the English rule, reflected in the Natural Born Citizen Clause of Article II in 1789 and later, indirectly, in the Fourteenth Amendment’s Citizenship Clause, according to the Court—did not depend upon where one’s parents were domiciled when a person was born within the territory.
d. Most importantly, at page 693 itself, in the very paragraph on which DOJ now primarily relies, Justice Gray confirmed that domicile isn’t a prerequisite, and that even the U.S.-born children of visitors are entitled to birthright citizenship. In that paragraph, the Court held that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.” That holding by its terms does not depend on the newborn child’s legal domicile. To be sure, Gray then added that this fundamental rule “includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States”—a category that described the Wong Kim Ark case before the Court—because “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” (Emphasis added.) Immediately following this statement, however, Gray further explained that such “allegiance to the United States is direct and immediate” even where it is “but local and temporary,” and that therefore a child born to such a “temporary” visitor is “a natural-born subject.” Importantly, Gray then proceeded to quote from Secretary of State Daniel Webster’s 1851 well-known report in Thrasher’s Case, which the Supreme Court had previously relied upon in Carlisle. In that report, restated in Wong Kim Ark, Webster explained that the requisite allegiance is established “independently of a residence with intention to continue such residence; independently of any domiciliation; [and] independently of the taking of any oath of allegiance or of renouncing any former allegiance.” (Emphasis added.)
Thus, in the very paragraph on which DOJ principally relies, Justice Gray made clear that the fundamental rule codified in the Fourteenth Amendment established the natural-born citizenship of a child born in the United States to a temporary visitor “independently of any domiciliation.” (See also pages 31-32 of the recent opinion of the U.S. Court of Appeals for the Ninth Circuit, emphasizing Gray’s quotation from the Thrasher’s Case report.)
e. Finally, it’s important to recognize that the two dissenting Justices in Wong Kim Ark understood the Court to have decided that domicile was not a prerequisite for Fourteenth Amendment birthright citizenship. In his dissenting opinion, joined by Justice Harlan, Chief Justice Fuller objected to the Court’s embrace of the common law rule in large part because “[t]he English common law rule recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents” (p.718; emphasis added). (Earlier, on page 706, Fuller invoked the passage from Lord Cockburn that Gray had quoted, in which Cockburn explained that under the British common law doctrine a person born in a nation’s dominions is a citizen even if his parents were merely “temporarily sojourning in the country.”) “As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth,” explained Fuller (p.718), “the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial. And it is settled in England that the question of domicil is entirely distinct from that of allegiance. The one relates to the civil, and the other to the political status.”
In support of this distinction between “civil” and “political” status—and the understanding that domicile was germane only to the former, and thus was “wholly immaterial” to the question of allegiance on which birthright citizenship depended—Fuller cited Udny v. Udny, which, as we noted earlier, Justice Gray likewise employed in the majority opinion (pp. 656-657). Udny involved a dispute about inheritance, which raised a choice-of-law question concerning “whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject.” In Udny, however, Lord Chancellor Hatherley explained that “‘[t]he question of naturalization and of allegiance is distinct from that of domicil.’” And, as Justice Gray noted, Lord Westbury stressed the same distinction: “‘The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.’” On civil status questions such as determining a person’s “majority or minority, his marriage, succession, testacy or intestacy,” then, international law sometimes relied upon domicile as a choice-of-law criterion. Yet Lord Westbury “distinctly recognized that a man’s political status, his country, patria, and his ‘nationality, that is, natural allegiance,’ ‘may depend on different laws in different countries,’” and Westbury “had no thought of impeaching the established rule that all persons born under, British dominion are natural-born subjects.”
The Udny case, then, confirmed that the political status that the Wong Kim Ark majority held is the touchstone for birthright citizenship is quite different from the “civil status” that was sometimes used to make choice-of-law determinations on questions of inheritance and the like. (Writing two years before the decision in Wong Kim Ark, Dicey cited Udny for the proposition that “[t]he attempt … to identify change of domicil with change of allegiance has now been pronounced on the highest authority a failure.” Conflict of Laws at 734.) Chief Justice Fuller understood this distinction—and he didn’t agree with the Court’s decision to tether birthright citizenship to political status.[3]
Finally, it is noteworthy that less than six weeks after the Court issued its opinion in Wong Kim Ark, on May 7, 1898, Justice Harlan—who joined Fuller’s dissent—explained to his students at the Columbian College of Law (which later became the George Washington School of Law) that he and the Chief Justice were “wrong” (i.e., outvoted) on the question of whether a child born to a temporary visitor to the United States thereby became a U.S. citizen. The hypothetical he offered to illustrate the disagreement between the Court majority and the two dissenters on this issue was especially illuminating:
Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now, he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth?
DOJ insists that the Court left that question open in Wong Kim Ark. But Justice Harlan, and Chief Justice Fuller, realized all too well that it had not. Far from reserving that question for another day, the Supreme Court in Wong Kim Ark rejected DOJ’s argument in the current cases that one must be domiciled in the United States at birth in order to be “subject to the jurisdiction thereof.” (Indeed, as the forthcoming final post in this series will demonstrate, both political branches have long understood Wong Kim Ark to have resolved that question, and Congress codified the “subject to the jurisdiction thereof” condition on the assumption that it describes such newborns. Unsurprisingly, then, we are not aware of any post-Wong Kim Ark cases—and DOJ hasn’t cited any—in which the Executive Branch has denied the citizenship of someone born in the United States on the ground that his or her parents were not domiciled here.)
II. DOJ’s Failure to Defend the Citizenship Order’s Exclusion of Persons Born in the United States to Unauthorized Immigrants
Section 1 of the Trump Citizenship Order declares that two categories of persons born to foreign nationals in the United States are not citizens under the Fourteenth Amendment or 8 U.S.C. § 1401(a). Both categories in the Order cover cases where the child’s father wasn’t a citizen or LPR at the time of the person’s birth. The distinction in the two categories is with respect to the child’s mother. The first category covers children born to women who were “unlawfully present” in the United States on the person’s date of birth—by which the Order means that the mother entered the country unlawfully or remained in the country after the terms of a visa or other authorization expired. The second category is children born while the mother was lawfully in the United States on a temporary basis, such as on a student, work, or tourist visa.
Perhaps the most remarkable thing about DOJ’s briefs is that they barely make any effort to argue that the first, primary category of persons covered by the Citizenship Order—those children described in Section 1 of the Order whose mothers are unauthorized immigrants —are not “subject to the jurisdiction” of the United States. DOJ’s proffered “domicile” precondition, discussed in Part I above, has obvious relevance to the second, “lawful visitors” category. Those children would often not be domiciled in the United States under the traditional tests because their parents lack an intent to remain in the country indefinitely. By contrast, the vast majority of new parents who are unauthorized immigrants were domiciled in the United States on the date of the child’s birth according to the most familiar test for domicile in other legal contexts (such as in resolving the sorts of choice-of-law questions discussed by Story and Dicey) because they resided in the United States “without any present intention” to leave the U.S. for habitation in another country (Story ch. 3, § 43). Therefore, their children (whose domicile, at birth, is that of their parents) would be “subject to the jurisdiction” of the United States even on a sound application of DOJ’s own domicile-dependent theory.
DOJ devotes only a single sentence of its opening appellate briefs to the question of why its domicile argument is relevant to the “unauthorized immigrant” category of the Citizenship Order. (Its reply briefs are completely silent on it.) Unauthorized immigrants, according to DOJ, “have no lawful basis to establish a residence in the United States, much less to assert an intent to remain indefinitely in defiance of immigration laws.” See, e.g., Brief for Appellants in New Hampshire Indonesian Community Support at 30-31. DOJ cites almost nothing in support of this assertion, however, and it’s not clear what DOJ means by its claim that such persons “have no lawful basis to establish” a U.S. residence. Although federal law makes it unlawful for a foreign national to enter the country without authorization, see 8 U.S.C. § 1325(a) (making it a misdemeanor for an alien to enter the United States at any time or place other than as designated by immigration officers), or to overstay the terms of a visa, there is no federal statute that prohibits such persons from, for example, maintaining a residence in this country, or that preempts state law of domicile with respect to such persons. The Supreme Court therefore has already recognized that “illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State.” Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982).[4]
On top of the other problems we have identified, therefore, DOJ’s domicile argument doesn’t offer any plausible basis for defending the first, larger category of U.S.-born persons described in the Citizenship Order.
Wholly apart from the Government’s “domicile” theory, DOJ’s opening briefs also contain the statement (see, e.g., New Hampshire Indonesian Community Support opening brief at 23) that because “[a] child born to parents here unlawfully … owes primary allegiance to his parents’ home country,” that child is not “subject to the jurisdiction of the United States within the meaning of the Citizenship Clause.” As we explained above, however, this “primary allegiance” assertion isn’t really an argument as such—it’s an ipse dixit, which DOJ seems to have invented for the occasion. As far as we’re aware, there’s nothing in any law (and DOJ doesn’t cite anything) suggesting, let alone holding, that being “subject to the jurisdiction” of the United States depends upon whether one’s “primary allegiance” is to this country.
Nor, in any event, does DOJ offer any reason to conclude that a child born in the United States to an unauthorized immigrant has “primary” allegiance to her parents’ home country, whatever that might mean.[5] DOJ therefore hasn’t provided any plausible argument to support the conclusion that the principal category of persons described in Section 1 of the Citizenship Order—those children whose parents are unauthorized immigrants—are not “subject to the jurisdiction” of the United States.
As the final post in this series will explain, however, it’s not even necessary to resolve that constitutional question, because such persons certainly are citizens pursuant to a federal statute, 8 U.S.C. § 1401(a).
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[1] To be sure, if a person is domiciled in a particular jurisdiction, she might have a few greater rights or privileges than if she were merely visiting. But even if some such discrete rights and privileges attached to U.S. domicile as a matter of federal law (which is by no means obvious), it would hardly follow that a nondomiciled newborn isn’t subject to U.S. jurisdiction, or not entitled to a basic measure of “protection” from the U.S. government, when she is born in the United States itself. That is simply a non sequitur.
[2] DOJ further argues (id. at 28-29) that this was the Executive Branch’s view during that period, too, pointing to two passport denials written by successive Secretaries of State in 1885. To be sure, the Executive Branch did eventually come around to that view—after all, it argued in the Supreme Court that Wong Kim Ark himself was not a citizen. The two Secretary of State letters from 1885, however, are of little probative value. The first, written by Secretary of State Frederick T. Frelinghuysen, did not mention the Fourteenth Amendment at all—it was simply a gloss on the birthright citizenship statute at the time—and it turned not on domicile but on the fact that the person in question was born to a father who was a German subject (just as Wong Kim Ark’s parents were subjects of the Chinese Emperor, see 169 U.S. at 652, 653, 694, 705). 2 A Digest of the International Law of the United States § 183, at 397-399 (Francis Wharton ed., 2d. ed. 1887). In the second letter, Secretary of State Thomas Bayard focused mostly on whether the individual in question was entitled to a passport under international law. At the end of the letter, Bayard did give cursory treatment to the Fourteenth Amendment, but his reasoning there was that the applicant was not subject to the jurisdiction of the United States because he was “subject to a foreign power.” Id. at 400. Bayard’s conclusion contradicted an earlier view of Secretary of State Hamilton Fish, quoted by Justice Gray in Wong Kim Ark at 689-690.
[3] Somewhat inexplicably, in its reply briefs DOJ emphasizes that domicile was used as a choice-of-law criterion in the sorts of “civil status” determinations discussed in Udny. (See, e.g., the reply brief in New Hampshire Indonesian Community Support at pp. 8-9.) As Udny explained however—and, more to the point, as Justices Gray and Fuller each explained in Wong Kim Ark—the question of domicile did not bear upon the “political status” question of allegiance, and thus of citizenship, of one born within the realm. DOJ relies heavily on an obscure 1927 treatise entitled American Citizenship as Distinguished from Alien Status, written by Frederick Cleveland. The author himself, however, recognized the same distinction. In Chapter III of his treatise, he elaborated upon how, “[i]n English and American law, domicil is the criterion of civil as distinguished from political status” (p.34; emphasis added), and explained (id.) that in the modern state “political” allegiance to the nation “became the test of national character, and domicil remained the test of rights in civil relations only.” Thus, in the very next chapter, where Cleveland examined the meaning of “subject to the jurisdiction thereof” for purposes of birthright citizenship under the Fourteenth Amendment, he made no reference to domicile. Instead, he wrote—consistent with Wong Kim Ark—that the Citizenship Clause made “all persons born in the United States citizens, except the Indians” (p.54).
[4] In support of this statement, the Court in Plyler cited page 340 of Clement Bouvé’s 1912 Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States, where he wrote that “[a]n alien who, … entering in violation of the Immigration acts, … takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile.” As far as we know, state courts generally agree that a person’s unlawful entry or unlawful failure to comply with the terms of a visa does not preclude domiciliary status for purposes of state law. See, e.g., Munoz-Hoyos v. de Cortez, 207 P.3d 951, 953 (Colo. App. 2009); Garcia v. Angulo, 644 A.2d 498, 507–10 (Md. 1994) (Chasanow & Bell, JJ., concurring) (collecting cases). In light of Plyler, moreover, it’s doubtful that any other position would be tenable.
[5] It’s possible DOJ is referring to what a foreign national is required to do in a hypothetical case where the law of their home nation requires them to act in a way that violates U.S. law. Such a question would be rather abstract, because it’s difficult to imagine a child at birth being obligated to comply with conflicting laws of two nations. Even in the imagined case, however, of an adult in the United States confronted with such conflicting laws, the U.S. law would prevail over the law of the person’s home state—that is to say, the foreign national would have to act in accord with U.S. law as long as she is present here. That was certainly true of Wong Kim Ark himself and of his parents: They would have had to comply with U.S. law while they were in San Francisco, even if Chinese authorities (or law) instructed them to do otherwise. In that sense, their “primary” allegiance was to the United States while they were in San Francisco. DOJ doesn’t point to any ground for believing the result would be different in a case where the person’s mother had earlier entered the country unlawfully or overstayed her visa.
Taking Stock of the Birthright Citizenship Cases—A series of four essays
Part I: Unpacking Trump v. CASA, Inc.
Part II: Making Sense of the Three Established Exceptions
Part III: DOJ’s Arguments Regarding Domicile and Unauthorized Immigrants (with John Mikhail)
Part IV: DOJ’s Ineffective Response to Plaintiffs’ Statutory Argument
