Why Did SCOTUS Grant Cert in the Birthright Citizenship Case?
Last week, the Supreme Court granted certiorari in Trump v. Barbara. A federal district judge in New Hampshire preliminarily enjoined President Trump's Executive Order (EO) purporting to deny citizenship to children born in the United States to non-citizen parents unless at least one of those parents is a U.S. citizen or permanent resident. In accord with every other ruling by lower court judges who have addressed the merits of such claims, the judge concluded that the plaintiffs (as representatives in a provisionally certified nationwide class action on behalf of all children who would be affected by the EO) had established a likelihood of success on the merits of their claim that the EO violates both the Fourteenth Amendment's Citizenship Clause and 8 U.S.C. § 1401(a), which, in language that mirrors the Fourteenth Amendment, makes "a person born in the United States, and subject to the jurisdiction thereof" a "citizen[] of the United States."
The government's argument--as set forth in its cert petition and elsewhere--is that the original meaning of "subject to the jurisdiction thereof" does not simply mean subject to regulation by the United States but owing allegiance thereto. And the government contends that persons only temporarily in the United States do not fall within that category. There are many difficulties with that argument, but I'll focus on three, each of which is also elaborated in the respondents' brief in opposition and by numerous scholars and other commentators elsewhere.
(1) In both the statute and the Constitution, "subject to the jurisdiction thereof" is used to describe the persons born in the United States, not their parents. Thus, even assuming (quite controversially) that it connotes some notion of allegiance, the focus should be on the allegiance of the children, not their parents.
(2) The Solicitor General's cert petition claims that United States v. Wong Kim Ark (1898) supports its view that a person born to non-citizen parents obtains citizenship via birth on U.S. soil only if those parents are permanent residents. The petition cites language in the opinion referring to Wong Kim Ark's parents as having a "permanent domicile and residence" in the United States. However, the government's reasoning is anachronistic. In 1898, the status of lawful permanent resident (or green card holder) did not exist. The Wong Kim Ark Court used the language it did to mean something different.
In any event, it's clear from the rest of the opinion that the Court did not regard permanent residency (or any analogous status) as a necessary condition for operation of the Citizenship Clause. Rather, the case clearly establishes that the "subject to the jurisdiction thereof" language incorporates three and only three exceptions to birthright citizenship: (a) children born to foreign diplomats; (b) children born to invading armies; and (c) children born to Indian tribes (who have lcitizenship at birth by operation of clause b of the statute linked above).
Don't believe me? Here's the key language from Wong Kim Ark:
The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
That's it. Full stop. There is simply no way to reconcile the government's allegiance theory with the Wong Kim Ark Court's characterization of the meaning of "subject to the jurisdiction thereof." That's why in its brief in opposition the respondents said, accurately in my view, that the government was really asking the Court to overrule Wong Kim Ark without owning up to the fact that if it did so expressly it would need to overcome stare decisis.
(3) To be sure, if one ignores the rationale and focuses only on the holding of Wong Kim Ark, one might be able to say that Trump's EO is consistent with the Fourteenth Amendment's Citizenship Clause insofar as the EO rejects citizenship for children born in the U.S. to persons who entered the country illegally. Although they were not permanent residents in the modern sense, Wong Kim Ark's parents were lawfully present. So the argument that Wong Kim Ark doesn't resolve the status of children born to undocumented immigrants isn't quite as weak as the Solicitor General's broader argument.
But here's the thing. Even if it's possible to distinguish Wong Kim Ark on its facts with respect to children born to undocumented immigrants, that only gets the government past the respondents' constitutional argument. They also argue--and the district court agreed that they were likely to succeed in arguing--that the statute codifies the rule Wong Kim Ark laid down, which, as noted above, reads "subject to the jurisdiction thereof" as encompassing only three exceptions.
The SG equates the statute with the Fourteenth Amendment's Citizenship Clause because the former borrows the language of the latter. However, that's not how statutory interpretation necessarily works. 28 U.S.C. §§ 1331 and 1332 respectively use the same language as Article III's grant of federal question and diversity jurisdiction, but it has long been understood that the statutory provisions differ in meaning from the constitutional provisions. As respondents explain in their Brief in Opposition: "In 1940 and again in 1952, Congress codified the language of the Citizenship Clause—incorporating the then-prevailing understanding of those words as construed . . . in Wong Kim Ark."