This is the last 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 U.S. citizens by virtue of their birth in this country.
On Friday evening, the Solicitor General (SG) filed two substantively identical petitions for certiorari in the Supreme Court in two pending cases—Trump v. Washington, No. 25-364, and Trump v. Barbara, No. 25-365. The Court is likely to grant those petitions and to issue a decision on the merits of the Citizenship Order by June—probably in the Barbara case, because the Washington case raises a question of the plaintiff states’ Article III standing that the Court could avoid if it decides the merits in Barbara. The Question Presented in both petitions is whether the Citizenship Order “complies on its face with the Citizenship Clause [of the Fourteenth Amendment] and with 8 U.S.C. 1401(a),” which, according to the SG, “codifies that Clause.”
My first piece in this Just Security series was about the Supreme Court’s recent decision in Trump v. CASA, Inc., including how the Court’s decision might affect the nonsubstantive questions that remain open in the ongoing cases. (Those questions might soon be overtaken by the Supreme Court’s consideration of the merits.) The second and third installments in this series (the latter of which I wrote with my colleague John Mikhail) analyzed the primary arguments the Department of Justice has made thus far in support of the constitutionality of Trump’s Citizenship Order. (The SG’s new petitions change the focus of those arguments in certain respects—something I might address in a follow-on post.)
In this piece, by contrast, I focus on DOJ’s responses to the statutory argument the plaintiffs and some of their amici have offered. Because that statutory argument is independently sufficient to demonstrate that the Trump Citizenship Order is unlawful, it’s possible the Supreme Court might ultimately rule against Trump without revisiting the constitutional question.
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The argument that the Trump Citizenship Order violates a binding statute is fairly straightforward. Various plaintiffs and their amici emphasize different things as part of that argument. Here’s a summary that includes the most important pieces of that argument:
i. When Congress enacted a statute concerning birthright citizenship in 1940, and again when it codified that provision in 1952, it incorporated, virtually verbatim, the language of the Citizenship Clause of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (The 1940 statute, for example, the language of which now appears as 8 U.S.C. § 1401(a), provided: “The following shall be nationals and citizens of the United States at birth: (a) A person born in the United States, and subject to the jurisdiction thereof; ….”)
ii. When “Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” George v. McDonough, 596 U.S. 740, 746 (2022); see also Morissette v. United States, 342 U.S. 246, 263 (1952) (“where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word”). There was plenty of “old soil” in 1940 and in 1952 that elucidated the meaning and application of “subject to the jurisdiction [of the United States],” a condition that Congress incorporated from the Fourteenth Amendment into the statutory birthright citizenship provisions. The Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark construed that phrase in a way that plainly guaranteed birthright citizenship for both categories of U.S.-born persons described in the Trump Citizenship Order. And thereafter, in the decades between Wong Kim Ark and 1940, and continuing until 1952, the Executive Branch and Congress understood the Court’s decision in that manner and Executive agencies accordingly treated such persons as citizens.
iii. Moreover, and in addition to the “old soil” canon of construction that applies when “Congress employs a term of art obviously transplanted from another legal source,” Congress was, in 1940 and again in 1952, well aware of the Supreme Court’s disquisition on “subject to the jurisdiction thereof” and of the Executive Branch’s understanding and practice. The Executive Branch had often explicated the scope of the language publicly, and had specifically informed Congress about what the proposed statutory language would cover. It’s therefore fair to assume that when Congress and the President incorporated the constitutional language into the statutory provisions involving persons born in the United States, they intended to codify the longstanding view of the other two branches about that language’s coverage.
iv. Accordingly, whether or not the majority of the Supreme Court and the Executive Branch were correct about the constitutional implications of the Court’s decision in Wong Kim Ark, that view of the application of the Fourteenth Amendment language is now established as a statutory guarantee, unless and until Congress amends the statute. And the President lacks authority to disregard the statutory citizenship of persons described in the Citizenship Order, regardless of whether his new reading of the Fourteenth Amendment—an interpretation that concededly contradicts more than a century of Executive Branch understandings—is or is not correct as a matter of what the SG refers to as the “original meaning” of the Citizenship Clause or “how the Clause was understood in 1868.”
A panel of the U.S. Court of Appeals for the Ninth Circuit recently invoked the statutory argument as an alternative basis for its conclusion that the Trump Citizenship Order is unlawful, in addition to the constitutional argument: “Because we conclude that the meaning of ‘subject to the jurisdiction thereof’ had been settled by the Supreme Court in Wong Kim Ark and had been settled in public understanding at the time that the statute was enacted, … we likewise conclude that the Executive Order likely violates the INA.”
It’s possible that the Supreme Court might declare the Trump Order to be unlawful on the basis of the statutory argument alone without answering the constitutional question. This essay, therefore, is devoted to addressing the Department of Justice’s responses to the plaintiffs’ and amici’s statutory argument.
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In 1933, President Franklin Roosevelt directed the Secretary of State, the Attorney General and the Secretary of Labor to review the federal nationality laws and recommend to Congress a codification of those laws “into one comprehensive nationality law.” Five years later, Roosevelt transmitted to Congress the three-department committee’s proposed statutory revision of the U.S. citizenship laws, along with an extensive Commentary explaining the provisions of that proposal. See To Revise and Codify the Nationality Laws of the United States into a Comprehensive Nationality Code: Before the H. Comm. on Immigr. & Naturalization, 76th Cong. 413 (1940) (“1940 House Hearings”). One of the recommended provisions was the birthplace citizenship rule quoted above, which incorporated the language of the Fourteenth Amendment. Id. at 418.
Congress eventually enacted the Executive’s draft proposal on birthright citizenship in the Nationality Act of 1940, Pub. L. No. 76-853, tit. I, ch. II, § 201(a), 54 Stat. 1137, 1138. Twelve years later, it reenacted the birthright citizenship provision as part of the Immigration and Nationality Act of 1952. Pub. L. No. 82-414, tit. III, ch. 1, § 301(a)(1), 66 Stat. 163, 235 (1952). In addition, Congress in both 1940 and in 1952 applied the language of the Citizenship Clause to establish statutory birthright citizenship for persons who were born in Puerto Rico and were, at birth, “subject to the jurisdiction of the United States.” See 1940 Act § 202, 54 Stat. at 1139; 1952 Act § 302, 66 Stat. at 236. (As I’ll explain in further detail below, this application of the constitutional term in the provisions dealing with persons born in Puerto Rico helps to establish that Congress intended to incorporate the comprehensive coverage of the constitutional language that was universally accepted at the time.)
When Congress acted in 1940 and in 1952, it was well-established, both by the Supreme Court’s governing decision in Wong Kim Ark and by the practices and pronouncements of the Executive Branch in the intervening decades, that persons described in both of the categories in the Trump Citizenship Order were “subject to the jurisdiction” of the United States and therefore were citizens at birth. What’s more, there’s every reason to believe that in both 1940 and 1952, members of Congress understood that to be the case when they deliberately incorporated the Fourteenth Amendment language into the statute. Indeed, Congress chose to use that broad language to apply to children born in Puerto Rico—persons who Congress assumed were not covered by the Fourteenth Amendment (see House Hearings at 423-426)—which further demonstrates that Congress intended to confer citizenship on persons covered by the Trump Citizenship Order.
In order to better understand the effect and intent of the 1940 and 1952 enactments, it’s helpful to examine separately the ways in which all three branches understood the question of the citizenship of the two distinct categories of native-born persons covered by the Trump Citizenship Order.
A. Children Born to Foreign Visitors
Section 2(2) of the Trump Citizenship Order declares that a person born in the United States isn’t a citizen by virtue of that native birth if her father wasn’t a citizen or lawful permanent resident (LPR) and her mother was lawfully in the United States on a temporary basis, such as on a student, work, or tourist visa, on the date of birth. In other words, the President has declared that birthright citizenship doesn’t attach to a person born in the United States to a woman who was lawfully visiting this country (if the person’s father was not a citizen or an LPR).
DOJ is correct that before the Court decided Wong Kim Ark in 1898, there had been some debate about whether the Citizenship Clause covered persons born in the United States to lawful visitors. Wong Kim Ark effectively settled that debate, however. As John Mikhail and I explained in the previous piece in this series, Justice Horace Gray’s opinion for the Court effectively resolved the “visiting mother” question in favor of citizenship—something both of the dissenting Justices understood and acknowledged. And, as I describe in detail below, in the decades between Wong Kim Ark and Congress’s actions in 1940 and in 1952, the Executive Branch adopted, articulated and implemented that understanding of what the Supreme Court had decided with respect to the citizenship of persons born to U.S. visitors.
DOJ (including the SG in the recent cert. petitions) offers two different sorts of counterarguments.
DOJ’s primary argument takes issue with the plaintiffs’ historical account about how the language of the Citizenship Clause was understood between 1898 and 1940. DOJ insists that to the extent there was any consensus or majority view on the question during those decades, it was that the Citizenship Clause language did not confer birthright citizenship on children born to temporary visitors. I address this argument in Section 1, below.
The Solicitor General also asserts that the widespread understanding of the constitutional language in 1940 and in 1952 doesn’t matter because “[t]he meaning of Section 1401(a) depends on the meaning of the Citizenship Clause, which in turn depends on how the Clause was understood in 1868.” Petition for a Writ of Certiorari Before Judgment in Trump v. Barbara at 29. I address this argument in Section 2, below.
1.
According to DOJ, “the weight of legal authority in the decades after Wong Kim Ark recognized the decision was limited to children born to aliens domiciled here and did not extend to the children of temporary visitors.” Reply Brief in CASA, Inc. v. Trump at 23 (4th Cir.) (citing DOJ’s opening brief in CASA, Inc.) (emphasis added). DOJ even goes so far as to claim that there were “numerous authorities advancing this reading between 1898 and 1952,” id. at 23-24, and that “Executive Branch practice recognized the limitations of Wong Kim Ark’s holding” and therefore did not recognize the citizenship of children born in the U.S. to undomiciled visitors, Opening Brief in CASA, Inc. at 46-47.
These claims are simply untrue. The post-Wong Kim Ark practice and public understandings show the opposite picture. Consider the following:
• The first and most significant part of the historical backdrop for the 1940 and 1952 legislation—the most important component of the “old soil” that informs the meaning of the language Congress “transplanted” from the Citizenship Clause—was, of course, the Supreme Court’s 1898 decision in Wong Kim Ark itself, the leading precedent on the meaning and application of the term of art that Congress adopted (“subject to the jurisdiction [of the United States”). See Bartenwerfer v. Buckley, 598 U.S. 69, 80 (2023) (the Supreme Court generally assumes that “when Congress enacts statutes, it is aware of th[e] Court’s relevant precedents”) (citations omitted). As John Mikhail and I explained in the previous piece in this series, although the stipulated facts of Wong Kim Ark’s case did not require the Court to decide the question directly, the ratio decidendi of the Court’s decision, as elaborated in many passages of Justice Gray’s opinion for the Court, decisively rejected DOJ’s argument in the current birthright citizenship litigation that one must be domiciled in the United States at birth in order to be “subject to the jurisdiction thereof,” and confirmed—much to the dismay of the two dissenting Justices—that children born to temporary visitors are United States citizens.
• As far as I’ve been able to determine, the Executive Branch first considered the application of Wong Kim Ark to children of U.S. visitors just three years after the Court’s decision. The U.S. chargé d’affaires in Italy issued a passport to Francesco Guarino, who had been born some years earlier to Italian parents while they were temporarily in the United States with no intention of being naturalized. The U.S. Consul-General in Rome, Hector de Castro, objected, and on June 20, 1901, he asked the State Department in Washington to resolve the question of whether such a native-born person is a U.S. citizen. On August 8, 1901, the Acting Secretary of State, Alvey Adee, wrote to the chargé d’affaires that his decision to issue the passport was “correct” because “[t]he position of the Department is that birth in the United States, irrespective of the nationality of the parents, confers American citizenship.” Indeed, Acting Secretary Adee noted, with reference to Wong Kim Ark, that “[i]n view of the decisions of our Federal courts, there can be no doubt of the correctness of this position.” The State Department included this exchange of letters in its published Papers Relating to the Foreign Relations of the United States for the year 1901 (Doc. No. 287, at pp. 303-304).
• In 1904, the State Department’s Assistant Solicitor, Frederick Van Dyne, published a comprehensive volume entitled Citizenship of the United States, which was designed to satisfy the “great need” for “a comprehensive and convenient reference work on the subject of citizenship of the United States” (p. v). (The Van Dyne volume became a well-known authority on questions of citizenship: The Supreme Court subsequently cited it on several occasions.) Right at the outset of that volume, Van Dyne noted (id.) that the Supreme Court in Wong Kim Ark had “authoritatively settled” the question “whether, under our law, children born in the United States to alien parents are citizens of the United States—a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed.” In a subchapter entitled “Children born in United States of alien parentage” (pp. 12-24), Van Dyne discussed in great detail the judicial developments that had preceded Wong Kim Ark, and he explained (pp. 23-24) that Wong Kim Ark had settled the question “beyond controversy” in holding that, with three discrete exceptions—children of diplomatic representatives of a foreign state; children born to occupying enemies; and children of members of “the Indian tribes”—“the children born to foreigners in the United States are citizens of the United States.” Van Dyne did not suggest that there was a separate exception for children born to “visiting” parents, or that U.S. domicile was a condition of citizenship. To the contrary, he explained in an earlier section (p. 5) that “[t]he executive departments of our government have repeatedly reaffirmed” the “doctrine” announced in the 1844 New York decision of Lynch v. Clarke (which played a prominent role in the Supreme Court’s decision in Wong Kim Ark) that a person born in the United States to foreign parents “during their temporary sojourn” in this country was a U.S. citizen even though she had returned with her parents to their native country shortly after her birth and had remained there for decades thereafter.
• In February 1907, Charlemagne Tower, U.S. Ambassador to Germany, wrote to the Secretary of State about a request for a passport for Carl Gundlich, a young man who wished to come to the United States to escape required military service in Germany. Gundlich had been born in the United States in 1887 while his parents were residing there for a year and a half, and left for Germany with his parents later that year. He had resided in Germany for the subsequent two decades; spoke no English; and had no interest in America apart from the opportunity to avoid German conscription. Tower informed the Secretary that he planned to deny issuance of the requested Gundlich passport. On March 8, 1907, however, Acting Secretary of State Robert Bacon instructed Tower that “[t]he young man is … undoubtedly a citizen of the United States under the terms of the Constitution and section 1992 of the Revised Statutes, which declare that all persons born in the United States are citizens thereof.” “[A]s such,” wrote Bacon, “he may be granted a passport, provided he does not intend to put it to an improper or unlawful use.” This exchange of letters also was made public, in the State Department’s Papers Relating to the Foreign Relations of the United States for the year 1907 (Docs. Nos. 382-383, at pp. 516-517).
• In 1921, the Assistant Solicitor at the State Department, Richard W. Flournoy, Jr.—who would later be the State Department’s lead advisor to the interdepartmental committee that drafted what ultimately became the Nationality Act of 1940—published a two-part article on dual nationality in the Yale Law Journal. In the first installment, Flournoy addressed a mistake that had been made by “a number of writers on international law, who have assumed that, in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth.” That “error,” Flournoy wrote, “seems to have originated with [Francis] Wharton,” whose 1886 International Law Digest expressed the view—before the Court’s decision in Wong Kim Ark—that U.S.-born persons whose parents weren’t U.S. citizens were not themselves citizens. Wharton’s mistaken view, Flournoy explained, was reflexively repeated in international law treatises written at the turn of the century by Hannis Taylor (1901), William Edward Hall (1904), and John Westlake (1904). Flournoy wrote that “I should hesitate to question the view expressed by such high authorities were it not for the fact that it is clearly contrary to the decisions of our courts.” “It is true,” Flournoy conceded, “that the decisions in In Re Look Tin Sing [an 1884 opinion written by Justice Stephen Field sitting by designation in a federal circuit court in California] and United States v. Wong Kim Ark did not directly decide the precise point that persons born in the United States of aliens who are mere sojourners or transients are citizens of this country, since in each of these cases the parents were domiciled in the United States, so that it was not at issue.” Both of those decisions, however, “relied to a considerable extent upon the [New York] decision in Lynch v. Clarke, in which the person concerned, who was declared to be a native citizen of the United States, was born in this country of alien parents who were mere sojourners.” And “[w]hat is more important,” Flournoy explained, those decisions, including Wong Kim Ark, “were based upon the theory that the law of citizenship of the United States was taken from the common law of England, and the latter makes no distinction between persons born in the country of alien sojourners and those born of domiciled aliens.” Richard W. Flournoy, Jr., Dual Nationality and Election (Part I), 30 Yale L.J. 545, 552–53 (1921).
Flournoy acknowledged that this result might seem counterintuitive: Could it really be the case, he asked rhetorically, that if a Chinese merchant and his wife were returning from Europe to China via the United States, and a child was born to the woman in San Francisco the day before they sailed for home, the child would be a U.S. citizen “by the mere accident of having first seen the light in this country”? “Absurd as it may seem,” he explained, “the child is indeed a citizen of the United States under the law of this country, although it is also a Chinese citizen under the law of China.” And “[a]lthough it is unfortunate that such cases are possible, there is, on the other hand, much practical advantage in a system in which mere proof of birth in the United States is sufficient proof of citizenship.”
• Writing a year after Flournoy, esteemed scholar Charles Cheney Hyde noted, in the first edition of his treatise about the United States’s perspective on international law, that “in view of the decisions of the courts,” the Department of State was not “disposed to raise a distinction based upon the domicile of the parents.” 1 International Law, Chiefly as Interpreted and Applied by the United States § 344, at 614-615 (1922). (As post-Wong Kim Ark evidence for this point, Hyde cited the Secretary of State decisions in 1901 and 1907, discussed above.) Hyde himself agreed that there was no apparent reason “to anticipate a different conclusion” from that in Wong Kim Ark in a hypothetical litigated case where the parents “were temporary sojourners, and not domiciled” in the United States, because “[i]nasmuch as the Supreme Court interprets the Fourteenth Amendment in the light of the common law, and as that law pays no heed to the domicile of the parents in determining the nationality of the child, it would be difficult if not impossible for that Tribunal to raise a distinction based upon the domicile of the former, without abandoning the theory of interpretation which has been adopted.” Id. at 614 & n.3. (Hyde’s treatise became well-known—the Supreme Court, for example, has cited it repeatedly.)
• In 1928, a Harvard Law Review Note on “Citizenship by Birth”—citing Hyde, Lynch v. Clarke, and the Secretary of State’s determination in the Gundlich case published in the 1907 Foreign Relations volume—represented that “it seems safe to say that the same rule [as that announced in Wong Kim Ark] would be applied to children born to aliens temporarily within the country, no matter how short their stay.” 41 Harv. L. Rev. 644, 645 (1928). In 1930, the Office of the Solicitor of the State Department determined that Ona Laszas, a child born on Ellis Island to a woman who had not been admitted as an immigrant, was a citizen of the United States: “If [her mother] had committed a murder or any other criminal offense while she was on the island,” the Solicitor reasoned, “there seems to be no question but that she would have been subject to prosecution and punishment under the laws of this country” and therefore “owed the same ‘temporary allegiance’ which is required of aliens generally while they are in this country.” Under the rationale of Wong Kim Ark, that fact made the daughter a U.S. citizen. Memorandum of the Office of the Solicitor for the Department of State, Feb. 6, 1930 (file 130), reported in 3 Green Haywood Hackworth, Digest of International Law ch. 9, § 221, at 10 (1942). (In the second edition of his International Law treatise, published in 1947, Professor Hyde cited the Laszas case as further support for his account of the State Department view. See 2 Charles Cheney Hyde, International Law § 344 at 1070 (2d rev. ed. 1947).)
• Presumably, in the 42 years between Wong Kim Ark and Congress’s enactment of the 1940 statute—and in the dozen years thereafter, until Congress enacted that same language again in 1952—many women who were in the United States lawfully but temporarily, and who were not legally domiciled in this country, gave birth to children during their stay here. Yet as far as I know there is no evidence (certainly DOJ doesn’t cite any) that the State Department ever refused to issue a passport to such persons, or otherwise treated them as if they were not U.S. citizens—and, more importantly, perhaps, there’s no indication that the State Department ever formally determined that such persons were not citizens. The apparent absence of any such cases, which was entirely consistent with the Department’s consistent publicly stated view of the law, as reflected in the Van Dyne treatise and the Flournoy article (as well as the State Department’s official, published Papers Relating to the Foreign Relations), was also part of the historical backdrop against which Congress acted in 1940 and 1952.
• Finally, in 1938, President Roosevelt conveyed to Congress the report of his three-department Executive committee, which explained that, according to the Court in Wong Kim Ark, the phrase “subject to the jurisdiction thereof,” which the proposed statutory revision would codify, “had the effect of barring certain classes of persons, including children born in the United States to parents in the diplomatic service of foreign states and persons born in the United States to members of Indian tribes.” 1940 House Hearings at 418 (Report of the State, Labor and Justice Departments, submitted by President Roosevelt to Congress on June 13, 1938). The committee identified, in other words, two of the three established exceptions to birthright citizenship that the Court identified in Wong Kim Ark and in Elk v. Wilkins. (It was unnecessary to mention the third—children of occupying forces—because that hasn’t been something that’s occurred in the United States since early in the Republic and presumably the committee assumed there was no prospect of it. I discuss these exceptions at length in the second installment of this series.) The committee’s Commentary then specifically noted that although the case before the Court in Wong Kim Ark “related to a person born to parents who were domiciled in the United States,” the Court’s rationale “was in agreement with the decision of the Court of Chancery of New York in the year 1844 in Lynch v. Clarke,” which meant that “a child born in the United States of parents residing therein temporarily” would be a birthright citizen, too. “In other words,” the Commentary explained to Congress, “it is the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child.” Id. (emphasis added).
This explanation, specifically conveyed to Congress in contemplation of the legislation that would adopt the language of the Fourteenth Amendment, fully reflected the State Department’s practice, and its consistent public pronouncements, in the four decades after
Nothing in the subsequent congressional hearings and debate preceding Congress’ enactment of the 1940 statute suggested a differing view. And the one colloquy in a House hearing that was specifically on point confirmed the State Department’s understanding. A member of the House Committee on Immigration and Naturalization pondered whether a child born to a French couple two weeks into their visit here would be a U.S. citizen under the language the legislation incorporated from the Citizenship Clause. Two other House members, including one who had worked on the legislation and was appearing as a witness, responded that that child would, indeed, be an American citizen. 1940 Hearings at 246.
Although Congress did not accept all of the provisions of the Roosevelt Administration’s proposed legislation, it did enact the Roosevelt proposal for the birthright citizenship provision—and it applied the Citizenship Clause language, as well, in a provision establishing birthright citizenship in Puerto Rico (discussed further in Section 2, below). In light of the consistent Executive Branch practice and public representations recounted above, there’s every reason to believe that any member of Congress who might have considered the question would have assumed that the new statute would, as the Executive Branch assured them it would, establish a statutory guarantee of citizenship for persons born in the United States (and Puerto Rico) to foreign visitors, regardless of whether they or their parents were domiciled in the United States. And, in any event, wholly apart from the any subjective understandings of legislators (or the President), Congress adopted a “a term of art obviously transplanted from another legal source”—namely, “subject to the jurisdiction [of the United States]”—and thereby codified the meaning established with respect to the “old soil” from which it had been “transplanted,” George, 596 U.S. at 746, pursuant to which children born to foreign visitors were American citizens regardless of their (or their parents’) legal domicile.
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In light of this extensive and consistent post-Wong Kim Ark history preceding Congress’ action, how could DOJ now possibly argue—as it has in the courts of appeals—that “the weight of legal authority in the decades after Wong Kim Ark recognized the decision was limited to children born to aliens domiciled here and did not extend to the children of temporary visitors,” and that “Executive Branch practice recognized” such purported “limitations of Wong Kim Ark’s holding”? See also the Barbara cert. petition at 29 (“the view that birthright citizenship extends to children of … temporarily present aliens was far from well-settled by the time Congress adopted the Nationality Act in 1940”).
DOJ points to four things. None of them, however, singularly or in combination, undercuts the extensive historical account provided above concerning how the other two branches (and authoritative commentators) treated the question.
i. Treatises
DOJ represents (see, e.g., CASA opening brief at 32) that “[c]ommentators … regularly recognized that the children of temporarily present aliens were not citizens.” DOJ cites six treatises and other volumes in support of this proposition. See id. at 27, 30. Three of them, however, were written years before the Court decided Wong Kim Ark: Alexander Porter Morse’s Treatise on Citizenship (1881); Samuel Freeman Miller’s Lectures on the Constitution of the United States (1891); and William Edward Hall’s Treatise on International Law (4th ed. 1895). The other three were all published between 1901 and 1904, shortly after Wong Kim Ark: Hannis Taylor, A Treatise on International Public Law (1901); Henry Brannon, A Treatise on the Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States (1901); and John Westlake, International Law (1904). As John Mikhail explained here, however, Taylor and Westlake didn’t even acknowledge Wong Kim Ark; and, as Richard Flournoy first noted in 1921 (see above), Taylor and Westlake reflexively borrowed their assumptions about children of U.S. visitors from Wharton’s 1886 Digest of International Law, published twelve years before the Court decided Wong Kim Ark. (Westlake also cited diplomatic cases that Chief Justice Melville Fuller had relied upon in his dissenting opinion in Wong Kim Ark.) As for Brannon, a Justice of the West Virginia Supreme Court, his Fourteenth Amendment treatise—which, as far as I can tell, has only been cited once in a federal court opinion in the past 124 years—at least cited Wong Kim Ark in several places in support of other points. When it came to the single statement on which DOJ relies, however—that children of aliens born while their parents are traveling or only temporarily resident in the United States lack allegiance to the United States and therefore are not within its “jurisdiction” (p.25)—Brannon disregarded the contrary understanding in Wong Kim Ark and cited no authority at all for his bald assertion.
These half-dozen volumes, therefore, don’t come close to offering “the weight of legal authority” early in the Twentieth Century about how the Citizenship Clause is properly applied according to the leading Supreme Court precedent—a precedent most of them did not even acknowledge.
Worse still, DOJ misleadingly represents that Richard Flournoy—“the State Department official whom plaintiffs rely upon”—“acknowledged the consensus of treatise-writers that ‘in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth.’ CASA reply brief at 12 (quoting Flournoy’s 1921 Yale article) (emphasis added). Flournoy, however, did not assert that there was any such “consensus.” To the contrary, he wrote that the law on U.S. birthright citizenship had been “misstated” by three “writers on international law,” including Hannis and Westlake (as well as William Edward Hall), and explained that their view was “clearly contrary to the decisions of our courts,” including Wong Kim Ark, which they did not even discuss.
DOJ also asserts that after Congress codified the Citizenship Clause’s language in the 1940 and 1952 statutes, “treatises continued to explain that children of temporary visitors were not citizens.” Appellants’ Reply Brief in New Hampshire Indonesian Community Support at 18. The only thing DOJ cites for this proposition about what post-1952 “treatises” purportedly “explained,” however, is a single, unadorned sentence in an “Annotations” note concerning the definitional section of the statute in a volume on the Immigration and Nationality Act that Sidney Kansas published in 1953. See also the cert. petition in Barbara at 29-30 (likewise citing Kansas). In that Annotation, Kansas wrote (p. 183): “All persons born in the United States or territories … and subject to the jurisdiction of the United States, are citizens at birth. The only exceptions are children of alien diplomats or consuls and of transients or visitors.” (Emphasis added.)
It is odd, to say the least, that DOJ invokes the 1953 edition of Kansas’ Immigration and Nationality Act Annotated, and nothing more, to establish what “treatises” (plural) “explained” about the statute after Congress enacted it. For one thing, the Kansas book hasn’t been widely recognized as authoritative. (A quick search in Westlaw’s “Briefs” database suggests that advocates had virtually never cited it—for any proposition—until DOJ started doing so this year in support of the Trump Citizenship Order. Best I can tell, the Supreme Court has never cited it, and it rarely appears in the scholarly literature.) More to the immediate point, the solitary sentence DOJ quotes from Kansas’ Fourth Edition is hardly compelling evidence of a widely recognized construction of the Act after 1940 or 1952. In support of his statement about “transients or visitors,” Kansas cited no authority at all. In contrast to the earlier versions of Kansas’ treatise, including the third edition that he published in 1948 (i.e., between the 1940 and 1952 enactments), Kansas’ 1953 edition inexplicably did not acknowledge Wong Kim Ark’s treatment of the question, a fairly alarming omission in an “Annotation” note about who is “subject to the jurisdiction” of the United States for purposes of birthright citizenship.[1] Nor did Kansas mention, let alone try to distinguish, the long history recounted above about Executive branch practice and understandings and what the Roosevelt Administration informed Congress about whether children of temporary visitors were citizens. (Moreover, and apart from his representation about children of transients and visitors, Kansas was even wrong in asserting that U.S.-born children of foreign consuls are not citizens at birth. As I explained in the second piece in this series, such children—in contrast to those born to foreign diplomats—are U.S. citizens. See also Moncada v. Rubio, No. 23-55803 (9th Cir. Aug. 20, 2025) (holding that the plaintiff was not a citizen because his father was a recognized diplomat rather than a consul at the time of his birth).) In addition, earlier in the Fourth Edition of his treatise (at p.104), Kansas correctly identified cases holding that “[w]hen an alien is excluded and he claims United States citizenship by birth, and produces a birth certificate, then he must present sufficient evidence to establish his identity as the person named in such certificate.” Those judicial decisions did not suggest—nor did Kansas—that the excluded person must also produce proof that he or his parents were U.S. domiciliaries on the date of birth.
For all these reasons, the single Kansas sentence is a very thin reed for DOJ to rely upon in support of its assertions about the alleged common understanding of the statute’s application to children born to foreign visitors.
ii. The 1907 Labor & Commerce Regulation
In its briefs in the courts of appeals, DOJ has also cited a 1907 regulation issued by the Secretary of Labor and Commerce that provided that a child born in the United States to Chinese parents was exempt from removal or exclusion under the Chinese exclusion laws only if his or her parents had “a permanent domicile and residence” in the United States at the time of the child’s birth. See U.S. Dep’t of Labor & Commerce, Treaty, Laws, and Regulations Governing the Admission of Chinese 33 (Rule 2) (1907), cited in, e.g., Appellants’ Brief in New Hampshire Indonesian Community Support at 38-39. The Solicitor General also invokes the 1907 Labor & Commerce regulation in his new cert. petitions. See, e.g., the Barbara petition at 22.
The Civil Division and the SG neglect to mention, however, that when the agency amended its regulations three years later, in 1910, it removed the purported requirement of parental domicile. The amended regulation, citing Wong Kim Ark, provided unconditionally that “Chinese persons shown to have been born in the United States” were admissible. Treaty, Laws, and Regulations Governing the Admission of Chinese 31 (Rule 2) (including regulations approved Apr. 18, 1910) (1911). This amendment conformed the Labor and Commerce Department’s regulations to the determinations the Department of State had made and promulgated between 1901 and 1907 (see above).
Presumably the Department of Labor and Commerce conformed its practices to that reading of the Citizenship Clause, too. During the first two decades of the Twentieth Century, that Department was especially aggressive in its efforts to deport and exclude Chinese nationals. As a result, in many cases the Department did not credit Chinese individuals’ claims that they were U.S. citizens by virtue of birth in the United States. See Lucy E. Salyer, Laws Harsh as Tigers 209-211 (1995). Many of those cases ended up in litigation. In virtually all of the reported cases, the contested question was simply whether the individual was born in the United States. The adjudications of that question varied. Sometimes courts affirmed the Department’s determination, but in other cases the courts ruled against the Department and confirmed the individual’s birthright citizenship.[2] It’s a striking feature of these cases that, although the courts often made reference to the fact that Wong Kim Ark had involved a family that was domiciled in San Francisco at the time of the plaintiff’s birth, as far as I can tell the immigration authorities appear never to have contested citizenship in these cases based upon the individual’s failure to offer sufficient evidence that his or her parents were domiciled in the United States at the time of birth, even though in virtually all of the contested cases the parents were no longer living in the United States at the time of the dispute. This Department practice—of regularly contesting whether the evidence was sufficient to establish the individuals’ native birth without questioning whether there was any evidence that their parents were domiciled in the United States at the time—appears to reflect that the Department of Labor and Commerce’s official understanding was the same as that of the State Department, i.e., that birth in the United States conferred citizenship whether or not one’s parents were domiciled here or, alternatively, were merely visiting.
iii. The 1910 DOJ Report
In his petitions for certiorari, the SG asserts that “[c]ontemporaneous executive practice … weighs against a broad interpretation of Wong Kim Ark.” In support of this claim, the SG cites one and only one thing: a 1910 Report of the Spanish Treaty Claims Commission of the Department of Justice. See Barbara petition at 27 (citing Spanish Treaty Claims Comm’n, U.S. Dep’t of Justice, Final Report of William Wallace Brown, Assistant Attorney-General (1910)). According to the SG, that “report explained that ‘it has never been held, and it is very doubtful whether it will ever be held, that the mere act of birth of a child on American soil, to parents who are accidentally or temporarily in the United States, operates to invest such child with all the rights of American citizenship,’” and the report further “explained” that the Court’s decision in Wong Kim Ark “‘goes no further’ than addressing children of foreigners ‘domiciled in the United States,’ and that Wong Kim Ark did not address the status of children of ‘parents who are accidentally or temporarily in the United States.’” Id. (quoting 1910 Report at 121, 124 (App’x D)). The Civil Division likewise has placed great reliance on the 1910 DOJ Report in its briefs in the courts of appeals. See, e.g., Brief for Appellants in CASA, Inc. v. Trump at 34 (No. 25-1153) (4th Cir.).
As John Mikhail has explained on Just Security, however, the quoted statements were not part of the DOJ report itself, nor were they penned by Assistant Attorney-General William Wallace Brown, who wrote the report. They appeared, instead, in an appendix consisting of a very long “Brief on the Law of Citizenship” written by a line attorney who had assisted Brown, Emory S. Huston. (Brown explained that he included Huston’s “brief” as an appendix to the report because it “cover[ed] almost every phase of citizenship, including the rulings of the State Department, and judicial considerations, the whole systematically arranged under appropriate divisions, with an index to the correspondence and cases cited,” and therefore “will be of much value to the Government.” Id. at 32. Brown did not vouch for all of the many propositions in Huston’s brief, however, let alone Huston’s particular discussion about birthright citizenship.) Huston conceded (p.124) that the rulings of the Spanish Claims Commission itself—the commission headed by Assistant Attorney-General Brown and whose work was the subject of Brown’s report—reflected “the position that under the fourteenth amendment to the Constitution, as expounded in the Wong Kim Ark case, … there is no longer any room to question that every person born in the United States is an American citizen.” Huston also acknowledged (p.147) that the State Department had adopted the same view, as reflected in Assistant Solicitor Van Dyne’s 1904 book discussed above. And, of greatest importance, Huston noted that the position of the Spanish Claims Commission and the State Department reflected the rationale of the Supreme Court’s governing opinion in Wong Kim Ark itself. See, e.g., id. (“much is said in the opinion which may be taken to so indicate” that all children born in the United States, other than the children of Indians and foreign ministers, are citizens).
Huston himself thought that the Executive Branch’s position was a mistake—that the government should not “maintain” that “doctrine” and that it should treat Justice Gray’s extensive discussion of the question in Wong Kim Ark as “mere dictum” (id. at 124). Obviously, though, Huston did not prevail in pressing that view within the Executive Branch … much to his chagrin.
Neither the SG nor the Civil Division acknowledges that the statements in question were merely the views of one line attorney and that—as that attorney himself acknowledged—his position contradicted the views reflected in Wong Kim Ark and the positions of the State and Justice Departments with respect to children born to temporary visitors.
iv. Three Supreme Court Opinions
Finally, the SG asserts (Barbara petition at 27; see also, e.g., the CASA opening brief at 46) that “[a]fter Wong Kim Ark, the [Supreme] Court continued to treat domiciled Chinese residents differently, see, e.g., United States v. Mrs. Gue Lim, 176 U.S. 459, 468 (1900), and described and applied Wong Kim Ark as addressing domiciled permanent residents, see Chin Bak Kan v. United States, 186 U.S. 193, 200 (1902); Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920).” The SG goes so far as to write that in Chin Bak Kan and Kwock Jan Fat “this Court recognized that Wong Kim Ark concerned children born to foreign subjects only “when they were permanently domiciled in the United States.” Barbara petition at 27 (emphasis added).
The three decisions the SG cites, however, don’t support DOJ’s argument.
Gue Lim didn’t involve any question of birthright citizenship at all—which is why the Court in that case didn’t even cite Wong Kim Ark. Instead, the Court there simply construed an 1884 statute to decide whether it required a Chinese wife of a merchant domiciled in the United States to obtain a certificate from China in order to be admitted to join her husband in the United States. (Moreover, the Gue Lim Court didn’t suggest that its statutory construction (under which no certificate was required) turned on whether the merchant husband living in the United States was domiciled or not—a distinction that also wasn’t at issue in the case.)
To be sure, in the two other cases, the Court either quoted (Chin Bak Kan) or referred to (Kwock Jan Fat) the Court’s ultimate disposition in Wong Kim Ark, 169 U.S. at 705, where Justice Gray referenced the stipulated facts that Wong Kim Ark’s parents, at the time of his birth, were “subjects of the Emperor of China, but ha[d] a permanent domicil and residence in the United States, and [were] there carrying on business, and [were] not employed in any diplomatic or official capacity under the Emperor of China” (emphasis added). In neither Chin Bak Kan nor Kwock Jan Fat, however, did the parties dispute the petitioners’ (or their parents’) domicile, let alone contest whether U.S. domicile is a necessary precondition for birthright citizenship. They did not do so because that question simply wasn’t at issue in those cases—or in any others during that period in which courts reviewed the government’s assessments that particular individuals had not offered sufficient proof of their birth in the United States. And therefore, contrary to the SG’s characterization, the Court in Chin Bak Kan and Kwock Jan Fat certainly did not in any way suggest that the Court’s opinion in Wong Kim Ark “concerned children born to foreign subjects only “when they were permanently domiciled in the United States.” Barbara petition at 27 (emphasis added). All eight of the Justices who participated in Wong Kim Ark were still on the Court when it decided Chin Bak Kan in 1902, and, as John Mikhail and I have explained, all of them—including Chief Justice Fuller, who dissented in Wong Kim Ark and who wrote the Court’s opinion in Chin Bak Kan—were very much aware that the Court’s reasoning in the 1898 case was not so limited and that, under the common law rule the Wong Kim Ark majority held the Citizenship Clause to have incorporated, such domicile-at-birth was not a precondition for birthright citizenship.
It is thus unsurprising that, until DOJ’s briefing in the recent cases, no one within the U.S. government or outside it has ever thought to cite Chin Bak Kan or Kwock Jan Fat as support for the view that a child’s U.S. domicile at birth is a necessary precondition of birthright citizenship.
* * * *
In sum, DOJ hasn’t offered any compelling evidence to support its extraordinary assertions that “the weight of legal authority in the decades after Wong Kim Ark recognized the decision was limited to children born to aliens domiciled here and did not extend to the children of temporary visitors,” and that “Executive Branch practice recognized” such purported “limitations of Wong Kim Ark’s holding.” Instead, there was a “robust regulatory backdrop,” George, 596 U.S. at 746, confirming what the Supreme Court had established in Wong Kim Ark itself—namely, that such children are citizens at birth. Because that understanding of “subject to the jurisdiction thereof” was so well-established within the other two branches, there is at least a strong presumption—one DOJ has not yet rebutted—that the statutory phrase should be applied likewise.
2.
In his certiorari petitions, the Solicitor General offers a second, much different response to the plaintiffs’ statutory argument—one that doesn’t depend upon what the common, and the congressional, understanding of the statutory language was in 1940 and 1952. The SG acknowledges (Barbara petition at 29) that “in the first half of the 20th century, the Executive Branch came to interpret the Citizenship Clause and Section 1401(a) to confer U.S. citizenship even upon the children of unlawfully or temporarily present aliens.” Nevertheless, he writes, that understanding—which was conveyed to, and was well-known by, Congress—“do[es] not control the resolution of the question presented” because “[t]he meaning of Section 1401(a) depends on the meaning of the Citizenship Clause, which in turn depends on how the Clause was understood in 1868” (emphasis added).
In some of its briefs in the courts of appeals, DOJ has alluded to this alternative counterargument, as well. At page 21 of its reply brief in the New Hampshire Indonesian Community Support case in the U.S. Court of Appeals for the First Circuit, for example, DOJ invokes the Court’s 1946 decision in Girouard v. United States, 328 U.S. 61, 70 (1946), which actually involved another section of the Nationality Act of 1940. Section 335(a) of the Act provided that before being admitted to citizenship, a person who has petitioned for naturalization must take an oath to, inter alia, “support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic, and … bear true faith and allegiance to the same.” That oath had appeared in earlier statutes, too, and the Supreme Court had held three times (in 1929-1931) that it excluded a foreign national who refused to bear arms for religious reasons from eligibility for naturalization. In Girouard, a 5-3 majority of the Court overruled those three earlier decisions. In the course of doing so, the Court rejected the government’s argument, 328 U.S. at 69, that the 1940 Congress had effectively ratified the Court’s prior construction of the oath by re-enacting the earlier-enacted oath language verbatim. The Court reasoned that because the legislative history of the 1940 Act “contain[ed] no affirmative recognition of the rule” that the Court had pronounced in the three precedential cases, and because, two years later (in 1942), Congress “specifically granted naturalization privileges to non-combatants who like petitioner were prevented from bearing arms because of their religious scruples,” Congress’ recodification of the oath in 1940 was “as consistent with a desire to leave the problem fluid”—i.e., to tether the interpretation of the oath to the Court’s own possibly evolving interpretation of the language—as it was with the view that Congress had engaged in “adoption by silence.”
As I understand its argument, DOJ vaguely suggests that the same is true here—namely, that perhaps the 1940 and 1952 Congresses intended to “leave the problem fluid,” such that the scope of the statute would not necessarily be uniform but would instead depend upon whatever the Supreme Court at any particular time understands the proper scope of the Fourteenth Amendment to be, which, as the SG now puts it, “in turn depends on how the Clause was understood in 1868” (emphasis added).
I doubt that today’s Supreme Court would be inclined (at least not without an extremely clear textual basis for doing so) to construe a statute “to leave the problem fluid,” in the sense of holding that the proper application of the statute could vary over time depending upon the vicissitudes of the Court’s own evolving understanding of the original public meaning of the antecedent law (e.g., the Citizenship Clause here) that Congress incorporated into the statute.[3] Even if the current Court were inclined to consider Girouard-like reasoning, however, that mode of analysis should not have much purchase in the birthright citizenship cases in light of how Congress specifically dealt with the relevant language from the Citizenship Clause in 1940 and in 1952.
To be sure, the “old soil” canon—that “when Congress employs a term of art” it should be presumed to “‘adop[t] the cluster of ideas that were attached to each borrowed word’”—is not absolute: the Court applies that presumption only “in the absence of indication to the contrary.” George, 596 U.S. at 753 (quoting FAA v. Cooper (2012)). And Girouard offers one example where the Court found (albeit implausibly) that there were such “contrary” indications—and where, according to the Court, the legislative history didn’t reflect any congressional engagement with the Court’s precedents construing the transplanted language. By contrast, the Roosevelt committee that drafted the proposed legislation specifically informed Congress of Wong Kim Ark’s reading of the Citizenship Clause and how its scope did not depend upon the child’s domicile at birth. Moreover, unlike in Girouard, Congress did not later enact any provisions that arguably were inconsistent with the Court’s previous construction of the language used in the 1940 and 1952 Acts.
To the contrary, in both 1940 and 1952, Congress affirmatively indicated that it intended to incorporate the then-established rule associated with the Citizenship Clause as a matter of the new statutory guarantee. Unlike the language of the naturalization oath in Section 335(a) of the 1940 Act discussed in Girouard, which Congress “silently” re-enacted from an earlier statute, Congress added the language of the Citizenship Clause to the statute for the first time in 1940, after the Executive Branch had explained how the Court had construed it in Wong Kim Ark and after the Executive Branch itself had applied that understanding over many decades of practice. What’s more—and of perhaps greater significance—when it came to persons born in Puerto Rico, who Congress assumed were not protected by the Citizenship Clause, the 1940 and 1952 Congresses affirmatively chose to use the terms of the Fourteenth Amendment to replace earlier statutory language of a narrower scope.
In 1934, Congress enacted a statute declaring that persons born in Puerto Rico after April 11, 1899 (when Spain ceded the island to the United States in the Treaty of Paris) were to be considered U.S. citizens, but only if they were not “citizens, subjects, or nationals of any foreign power.” Act of June 27, 1934, ch. 845, 48 Stat. 1245. Under that provision, the vast majority of children born in Puerto Rico to foreign visitors were not birthright citizens. In Section 202 of the Nationality Act of 1940, however, Congress replaced that restrictive 1934 language with a provision stating that “[a]ll persons born in Puerto Rico on or after April 11, 1899, subject to the jurisdiction of the United States” were declared to be citizens of the United States if they resided in Puerto Rico or other U.S. territory on the effective date of the Act. 54 Stat. 1139 (emphasis added). As the Roosevelt committee explained to Congress when it proposed that amendment, the specific purpose of the amendment was to “expressly accept[] [as citizens] children born in the island of parents who are citizens or subjects of a foreign state.” 1940 House Hearings at 427 (Report of the State, Labor and Justice Departments, submitted by President Roosevelt to Congress on June 13, 1938)); see also id. at 415 (explaining that “[i]n the proposed new law this condition [from the 1934 statute] is eliminated, and birth in Puerto Rico will have the same effect as birth in the continental United States”).[4]
The fact that Congress chose to use the specific language of the Citizenship Clause to accomplish this objective is significant. When it came to children born in Puerto Rico, Congress’ understanding was that the Citizenship Clause itself would not apply (see House Hearings at 423-426)—and that therefore the statute alone would determine which children would be birthright U.S. citizens. If Congress had wished to exclude children of temporary visitors (or any other subset of children of foreign nationals) from this statutory guarantee, it could easily have included language (such as a domicile-at-birth condition) to effect such a limit. Yet it did not do so. Instead, it deliberately chose to use the Citizenship Clause term that it had every reason to believe would confer U.S. citizenship on all of those children born to foreign nationals in Puerto Rico. And Congress did so again in 1952, both with respect to persons born in Puerto Rico before the 1940 Act’s effective date and to those born on the island thereafter. See Pub. L. No. 82-414, tit. III, ch. 1, § 302, 66 Stat. at 236 (adding the sentence “All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.”).
For these reasons, DOJ’s Girouard-like argument shouldn’t carry the day, and the meaning of the statute should not depend upon the Court first determining how the Citizenship Clause was understood in 1868. Instead, it’s fair to conclude, consistent with the “old soil” canon, that Congress codified the well-established scope of “subject to the jurisdiction [of the United States]” when it incorporated that language in the 1940 and 1952 statutes, regardless of the theoretical (if unlikely) possibility that the Supreme Court might one day construe the Fourteenth Amendment in a more restrictive fashion.[5]
B. Children Born to Women Who Had Entered or Remained in the United States Unlawfully
When it comes to the other category of U.S.-born persons described in the Trump Citizenship Order, DOJ remarkably offers even less support for its argument that the question was a contested one as of 1940 and 1952 and that therefore Congress did not codify birthright citizenship for such persons.
Section 2(1) of the Trump Citizenship Order declares that a person born in the United States isn’t a citizen by virtue of that native birth if her father wasn’t a citizen or lawful permanent resident and her mother “was unlawfully present in the United States” on the date of birth. The term “unlawfully present” is intended to refer to women who either entered the United States unlawfully or those who stayed in the United States in violation of the terms of a visa.
Countless such women have given birth in the United States since 1898, yet, as far as I’m aware, the Executive Branch has never, in that time, treated the native-born children as though they are not U.S. citizens. And, in contrast to the children born to lawful visitors, it appears that there was virtually no discussion, within the political branches or in public sources, concerning whether this population of native-born persons were citizens. As noted in the footnote below, I’m aware of only two mentions of the topic in secondary sources before 1985, and they both agreed that such children were birthright citizens.[6]
It therefore is unsurprising that the Roosevelt administration’s three-agency committee did not address this hypothetical in its transmissions to Congress, and that it was not discussed in the congressional deliberations preceding either the 1940 or the 1952 enactment. It’s fair to assume that no one raised the topic because it simply didn’t occur to anyone that such children might not be citizens. That view would have been in the teeth of the ratio decidendi of Wong Kim Ark (as John Mikhail and I discussed in Part II of our previous piece), and there’s nothing in Wong Kim Ark to suggest otherwise. It’s therefore unsurprising that the Senate Judiciary Committee noted in a report in 1950—citing Wong Kim Ark—that there was “broad common law, constitutional, and statutory provision that all native-born persons, except those born of parents who are in the diplomatic service of foreign states, are citizens at birth.” S. Rep. No. 81-1515, at 685 (1950).
As I wrote in here back in February, the case of U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), vividly demonstrates just how well-accepted and uncontroverted it was that children born in the United States to unauthorized immigrants were citizens. In that case, a Greek husband and wife entered the United States as crew members of ships docked in a U.S. port. They both unlawfully failed to leave the county when their limited authorized stay expired, after which the woman gave birth to a child in the United States. They then requested suspension of deportation because their citizen child would suffer economic hardship if his parents were deported. The Board of Immigration denied that request, and the Supreme Court held that the Board did not abuse its discretion. For present purposes, however, what’s significant about Hintopoulos is that the Solicitor General conceded that the child was a U.S. citizen, see 1957 WL 87025, at *7, *11, and the Supreme Court readily confirmed that “the child is, of course, an American citizen by birth.” 353 U.S. at 73 (emphasis added).
The Hintopolous case was hardly atypical. As Professors Collins, Neuman and Rosenbloom explain at great length in an important amicus brief they’ve filed in the courts of appeals, in the years between 1940 and Congress’ reenactment of the citizenship provision in 1952, the State Department and Congress itself consistently acted on the assumption that such persons were birthright citizens, which resulted in numerous cases analogous to the Hintopolouses’. See, e.g., the Professors’ brief in O. Doe v. Trump (1st. Cir.), at 14-17 and 27-29.
Earlier in 1940, shortly before Congress enacted the comprehensive immigration legislation that contained the Roosevelt-proposed birthright citizenship provision, Congress enacted the Alien Registration Act of 1940, which included a provision that permitted the Attorney General to suspend the deportation of a noncitizen if, inter alia, the Attorney General found that deportation would result in serious economic detriment to a citizen who was a “minor child of such deportable alien.” Pub. L. No. 76-670, § 20, 54 Stat. 670, 672 (1940). The statute required the Attorney General to report any such suspensions of deportations to Congress, which (in the days before INS v. Chadha) had the power to veto them through a resolution of disapproval. Between 1940 and 1952, Attorneys General often suspended deportation for parents who had entered the country unlawfully on the grounds that their U.S.-born children were citizens. And Congress regularly allowed those suspensions—a practice that had become commonplace by the time Congress reenacted the birthright citizenship provision as part of the INA in 1952 (see the examples cited by Professors Collins, Neuman and Rosenbloom at pp. 27-29 & n.8); see also S. Rep. 81-1515, at 600 (1950) (“[A]lien parents with many alien children have entered the United States illegally from territory contiguous to the United States, and shortly thereafter, another child is born to the parents. Applications have been made for suspension of deportation by the parents on the ground that a serious economic detriment would result to the citizen child if the parents are deported. Suspension of deportation has been granted in many such cases.” (emphasis added.)) And, as Professors Collins, Neuman and Rosenbloom note, at least one similar case even occurred during the year before Congress enacted the 1940 citizenship provision and was a matter that Congress specifically addressed.[7]
In its briefs, DOJ does not cite any authorities or other evidence that might support its suggestion that the constitutional question as applied to unauthorized immigrants who give birth in the United States was contested or unresolved when Congress acted in 1940 and 1952. Presumably that is because there is none. Indeed, it appears that no one even thought to suggest that children born to such women are not birthright citizens until Peter Schuck and Rogers Smith did so in their 1985 book, Citizenship Without Consent: Illegal Aliens in the American Polity.
The “old soil” from which Congress “transplanted” the statutory term of art into the 1940 and 1952 statutes, therefore, firmly established that children born to women who had unlawfully entered (or remained) in the United States—like those born to visitors—were citizens by virtue of their native birth.
– – – – – – – – – – – – – – –
- The 1948 Third Edition, by contrast, quoted (p.277) Wong Kim Ark’s holding, 169 U.S. at 693, that “[t]he 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.” ↑
- See, e.g., Louie v. United States, 238 F. 75 (3d Cir. 1916); In re Tang, 161 F. 618 (W.D. Wash. 1908); United States v. Jhu, 175 F. 630 (N.D. Ga. 1910); United States v. Chu, 179 F. 564 (D.S.C. 1910); United States v. Chin, 225 F. 794 (D. Me. 1915). ↑
- Moreover, the Court today applies a very robust presumption in favor of stare decisis with respect to the Court’s statutory precedents. It’s therefore unlikely that the current Court, confronted by the facts of Girouard, would have abandoned three of its precedents, particularly because, as Chief Justice Stone noted in his dissenting opinion, 328 U.S. at 74, “for six successive Congresses, over a period of more than a decade, there were continuously pending before Congress, in one form or another, proposals to overturn the rulings in the three Supreme Court decisions in question,” and yet “Congress declined to adopt these proposals after full hearings and after speeches on the floor advocating the change.” ↑
- In addition, Section 314 of the 1940 Act prescribed how “[a] child born outside of the United States of alien parents” could become a naturalized citizen. 54 Stat. at 1145. Yet the Act contained no analogous provision for the naturalization of children born to foreign nationals within the United States. The most plausible reason for Congress to have omitted any such provision is that Congress understood that they would already be citizens by virtue of their native birth. ↑
- In the unlikely event the Court ever adopts a more restrictive reading of “subject to the jurisdiction [of the United States]” for purposes of the Citizenship Clause, it would not be unprecedented for a term Congress borrowed from the Constitution to have a different meaning when it appears in a federal statute. The most famous such example is the phrase “arising under [federal law],” which Congress incorporated from Article III of the Constitution into the so-called “federal-question jurisdiction” statute in 1875, currently found at 28 U.S.C. § 1331. The Supreme Court has regularly construed “arising under” more narrowly for purposes of determining the scope of the statutory jurisdiction than the Court’s canonical construction of that term for constitutional purposes in Osborn v. Bank of the United States, 22 U.S. 738 (1824). See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 494-495 (1983). ↑
- The 1928 Harvard Law Review Note I flagged earlier addressed the issue in a single sentence. See 41 Harv. L. Rev. at 645 (“[W]here the child is born to parents who have entered the country illegally, citizenship should not be refused.”). The other treatment appeared in Clement L. Bouvé’s Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States (1912), which included a two-page section devoted to the question of children born to foreigners “unlawfully residing in the United States.” In light of the Court’s decision in Wong Kim Ark, Bouvé explained (p. 426), it “obviously” would not affect the child’s citizenship if the United States did not desire her parents’ allegiance and U.S. law forbade their entrance into the country. Bouvé answered the hypothetical question unequivocally (p. 427): “[T]he child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country.” ↑
- Morris and Lena Hoppenheim and their two daughters were Canadian nationals who visited New York for a relative’s wedding in 1924, but then unlawfully remained in the country, where another daughter was born in 1927. Because of the “distinct hardship” the family would suffer if the four Canadian Hoppenheims were deported, Congress passed a private bill directing the Secretary of Labor to cancel their outstanding warrants of deportation and treat them as lawful residents. Priv. L. No. 76-340, 54 Stat. 1267 (1940). The private law did not extend its relief to the Brooklyn-born third daughter because, as the House Committee report recommending enactment noted, she was “an American citizen.” H.R. Rep. No. 76-773 at 1 (1939); accord S. Rep. 76-1462 at 2 (1940). ↑
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 Responses to Plaintiffs’ Statutory Argument
