At the end of a piece I published here on September 10 involving the dubious legality of the Caribbean strikes, I surmised that such an “armed conflict” theory might have been the rationale administration officials have offered to military commanders and other personnel to try to persuade them that the lethal strikes on civilians do not violate the law and a venerable, longstanding Department of Defense prohibition on targeting civilians. The new notice to Congress confirms that this is, indeed, the administration’s legal theory, even though—for some reason—Trump did not invoke an armed conflict rationale in his September 4 War Powers Resolution report to Congress regarding the first of the Caribbean strikes, on September 2.

It’s not difficult to see why the administration would be inclined to invoke an armed conflict if there were any basis for doing so. For starters, if there were a noninternational armed conflict—a question determined by international law, as I describe below—then at least one important thing follows as a matter of international law. The parties to such a conflict must comply with the law of armed conflict (LOAC), including the principle of distinction that prohibits the targeting of civilians (and civilian objects). The members of enemy forces, however, are not considered civilians under the LOAC. Indeed, international law affords the State the right to try to destroy the non-State party’s military objects and to use lethal force against members of the organized enemy armed force on the basis of their status as such members. As far as international law is concerned, it would even allow killing them when they are at home, or when they are in the United States, as long as the expected incidental loss of civilian life was not disproportionate to the expected direct and concrete military value of killing the enemy fighters.

What’s more, as I explained in my September 10 piece, if there were a noninternational armed conflict as a matter of international law, then that could have implications for one or more of the domestic-law prohibitions I discussed in that article, too: A targeting of enemy armed forces in compliance with the LOAC does not violate the Assassination Ban in Section 2.11 of Executive Order 12333, and it also might not violate the murder prohibitions in the U.S. Criminal Code and in the Uniform Code of Military Justice, at least if the president has affirmative domestic law authority to engage in such status-based attacks (though, as I discuss below, he lacks such authority here).  (As I explained in my earlier piece, I don’t mean to suggest that any operational military personnel should themselves be criminally prosecuted for carrying out a presidential order such as this one; my point is simply to emphasize that Congress appears already to have prohibited such conduct and that attorneys in the Executive Branch, and members and committees of Congress, ought to consider the apparent application of these statutory prohibitions when assessing the legality of the targeting in these cases.)

The Trump administration’s “armed conflict” justification, however, is groundless. No one—in the public, in Congress or, most importantly, in the military itself—should treat it as a plausible legal basis that might justify lethal strikes on the alleged drug vessels and the civilians on those boats.

There are at least two basic problems with the assertion.

The first and most fundamental problem is simply that the United States is not engaged in an armed conflict with any drug cartel. Under the well-established understanding of the preconditions for a “noninternational armed conflict,” it is necessary (at a minimum) (i) that the non-State entity is an “organized armed group” with the sort of command structure that would render members targetable on the basis of their status because they’re subject to commanders’ direction and control and (ii) that the organized armed group has engaged in armed violence against the State that is of some intensity (think of al Qaeda’s attacks on Sept. 11, 2001) and that has been protracted. See Prosecutor v. Haradinaj, Case No. IT-04-84-T, Trial Judgment ¶ 49 (Int’l Crim. Trib. for the former Yugoslavia, Apr. 3, 2008); Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction ¶ 70 (Int’l Crim. Trib. for the former Yugoslavia, Oct. 2, 1995); International Committee of the Red Cross, Commentary to Common Article 3 of the Geneva Conventions, Part C-2-b.

The Trump administration hasn’t made any effort—not publicly, anyway—to demonstrate that any of the drug cartels in question are “organized” armed groups with the sort of command structure that would render members targetable on the basis of their status. But even if it could do so, those cartels haven’t engaged in any protracted or intense armed violence against the United States.

The notice the administration sent to Congress this week asserts, without citing any evidence, that the cartels “conduct ongoing attacks throughout the Western Hemisphere” and that “their actions constitute an armed attack against the United States.” The notice, however, doesn’t identify any such armed attack against the United States, let alone attacks of sufficient intensity and duration to establish a noninternational armed conflict with the United States. (I am uncertain whether intense armed violence that isn’t “prolonged” or “protracted” would suffice to establish a noninternational armed conflict, but that question isn’t relevant here, where the cartels haven’t engaged in armed attacks against the United States that are prolonged or intense.). It’s fairly evident from the notice that when the President uses the term “armed attack” he is referring not to any actual armed attack as any States or international tribunals understand that term, but instead to the “flow of illicit narcotics into the United States,” which “illegally and directly cause the deaths of tens of thousands of American citizens each year.” The distribution of dangerous narcotics, however, isn’t an armed attack or armed violence in the sense used in international law to determine whether an armed conflict has commenced. As far as I know, there’s nothing in international law that even suggests that such drug activity is sufficient to trigger the right of the affected State to kill persons simply because they are members of the drug cartel (which isn’t surprising, given the radical implications of such a theory).

The second considerable problem with the president’s new “armed conflict” theory is that even if there were an armed conflict—i.e., even if, contrary to any evidence, a particular drug cartel was an organized armed group that has engaged in intense or prolonged armed attacks against the United States—it’s likely that the Constitution would preclude Trump from ordering ongoing status-based targeting of members of that cartel due to the absence of any domestic law authority. To be sure, Article II empowers a president to repel an actual attack against the United States (or its troops). But that’s a far cry from authorizing an ongoing series of status-based strikes by the United States against a non-State armed group as part of an exchange of attacks that is sufficiently prolonged or intense to establish a noninternational armed conflict. At least if one assumes, as Trump appears to do, that this purported armed conflict would continue for some time, then it would almost surely be of such “nature, scope and duration” to constitute “war in the constitutional sense” (see Office of Legal Counsel opinions across many administrations to which I linked in my September 10 article), and therefore would require congressional authorization pursuant to the “Declare War” clause of Article I, section 8 of the Constitution. (And, at a minimum Section 5(b) of the War Powers Resolution would prohibit such attacks as of 60 days after they began, i.e., after November 1.)

For these reasons, the Trump administration’s newly announced determination that the United States allegedly is engaged in an armed conflict with an untold number of drug cartels does not offer any basis for concluding that the Caribbean strikes have been lawful. Moreover, as others will surely emphasize, such a determination raises very troubling questions about possible military action against alleged cartel members in the United States itself, and on the territory of other nations.

The post Legal Flaws in the Trump Administration’s Notice to Congress on “Armed Conflict” with Drug Cartels appeared first on Just Security.

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.

* * * *

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.

– – – – – – – – – – – – – – –

1. 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.” ↑
2. 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). ↑
3. 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.” ↑
4. 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. ↑
5. 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). ↑
6. 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.” ↑
7. 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

The post Taking Stock of the Birthright Citizenship Cases, Part IV: DOJ’s Ineffective Responses to Plaintiffs’ Statutory Argument appeared first on Just Security.

Although it’s easy to imagine how President Donald Trump and his aides and appointees might have decided to approve and order the strike, it’s difficult to understand how it came to pass that the non-appointed military officials and enlistees involved in the operation assented to such an indefensible breach of the fundamental norm against targeting civilians. At the end of this piece, I speculate on three possible ways in which supervisory officials might have persuaded (or cajoled) military personnel into violating that norm. Each of those three possibilities is deeply troubling, including the one that is the most likely explanation—namely, that the military accepted an implausible presidential determination that the United States is engaged in an armed conflict with Tren de Aragua, and that therefore the U.S. military can summarily kill alleged members of that criminal gang based solely upon their membership in that organization.

What We Know—and Don’t Know—About the September 2 Strike

In the analysis that follows, I’ll assume for the sake of argument the following facts, almost all of which either appear in the War Powers report itself or have been represented or affirmed by the President and administration officials. A few others have appeared in highly reliable news reporting that the administration hasn’t disclaimed or rebutted. It might well be the case, of course, that the facts are otherwise—and perhaps even more concerning than what I’ll set out here. For present purposes, however, I’ll presume that the following things are true:

1. On Tuesday, September 2, U.S. military forces deliberately targeted and (in the words of the War Powers report) “struck a vessel” in the Caribbean Sea, killing all (reportedly, eleven) persons on board. According to news reports, DoD used a drone to destroy the vessel, which a video of the strike that Trump posted to Truth Social depicts as a speedboat of sorts.

2. According to the President, the vessel was “assessed” (presumably by someone in the U.S. government) to be “affiliated with” a “designated terrorist organization.” In his Truth Social post, Trump said that the organization was Tren de Aragua (TdA), though it’s conspicuous that for some reason the White House did not say so in its WPR report. The President has not specified the way in which this vessel was “affiliated with” TdA or any other designated terrorist organization.

3. Also according to the War Powers report, someone “assessed” that the vessel was “engaged in illicit drug trafficking activities.” The President did not describe what those “illicit” activities were—or even allege in the report that there were narcotics on the boat. In his Truth Social post, Trump asserted that the vehicle was “heading to the United States,” but the War Powers report does not say that (and if it were true, the President would have had every incentive to say so in the report). Neither the President nor any other administration official has represented that the persons on the vessel planned to distribute drugs from the vessel into the United States or, more importantly, that any of them were planning to attack the United States (or any other nation, for that matter).

4. According to Secretary of State Marco Rubio, the military could have interdicted the vessel (see Mark Nevitt on how the Coast Guard regularly interdicts such drug trafficking vessels, often with the Navy’s assistance), but chose instead to destroy the vessel and to kill all those on board only because the President issued a directive to do so in order to “send a message.”

The Three Major Legal Prohibitions the Strike Probably Did Not Violate

Before I identify the many legal problems with the Caribbean strike, I think it’s important to explain why the Caribbean strike probably did not violate three legal constraints that are most frequently the primary subjects of debate when it comes to “unilateral” (i.e., not statutorily authorized) presidential uses of lethal force: (i) the Constitution’s assignment to Congress of the exclusive power to “declare war”; (ii) the statutory limits imposed by the War Powers Resolution; and (iii) the prohibition against the use of force in Article 2(4) of the United Nations Charter.

• The strike doesn’t appear to raise the serious constitutional issue of whether the President’s unilateral action usurped Congress’ authority to “declare war.” Based on what little we currently know, it appears that this operation wasn’t of the “nature, scope or duration” necessary to constitute “war in the constitutional sense,” as the Office of Legal Counsel has articulated and applied that test in opinions across many administrations (see, e.g., here, here and here). Therefore, the most familiar constitutional “war powers” question probably isn’t implicated. (That said, it’s been reported that Trump has issued a directive more broadly authorizing lethal strikes against drug cartels. Depending upon what that non-public directive authorizes and, especially, how the military implements it over the coming weeks or months, it is possible that a sustained campaign of force against Tren de Aragua, especially if it involves military force in Venezuela, would rise to the level of “war in the constitutional sense” and thus require statutory authorization. This possibility is something to bear in mind going forward.)
• The strike is also unlikely to implicate any questions about the 60-day “clock” in Section 5(b) of the War Powers Resolution, because even if the strike involved the “introduction” of U.S. troops into hostilities, those troops probably won’t be engaged in such hostilities (or be engaged in a situation “where imminent involvement in hostilities is clearly indicated by the circumstances”) for more than 60 days. (That said, the President’s War Powers report states that “[i]t is not possible at this time to know the full scope and duration of military operations that will be necessary” and that “United States forces remain postured to carry out further military operations,” so it is at least possible that the 60-day clock might be implicated if this strike was only the first of many to follow.)
• It’s also probably the case that the strike did not put the U.S. in breach of Article 2(4) of the United Nations Charter, which prohibits signatory States (including the United States) from any “use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” (A breach of the U.N. Charter is a violation of U.S. domestic law as well international law because that treaty is the “supreme Law of the Land” (U.S. Const. art. VI).) For Article 2(4) to be implicated, last Tuesday’s strike would need to have been either in the territory of a nonconsenting State or otherwise taken “against” another State (e.g., Venezuela). The DoD strike was in international waters, rather than in the territory of a nonconsenting State, and reportedly the boat in question was a private vessel. Even so, the strike could have been a “use of force” for purposes of Article 2(4) if the vessel was registered in a State and was flying that State’s flag. See Chapter III, section 2 of the U.S.’s 1997 Counter-Memorial and Counter-Claim in the Oil Platforms case. There’s nothing in the public record, however, suggesting that the speedboat the U.S. military targeted last Tuesday was flying another State’s flag, nor does the President’s War Powers report indicate that the strike was in any other respect directed against Venezuela or any other State. (The United States has not, for instance, filed an “Article 51” letter with the United Nations General Security Council—not yet, anyway—purporting to justify a “use of force” with a claim of “self-defence.”) Therefore it’s likely the strike wasn’t the sort of use of force that Article 2(4) presumptively prohibits.^[1]

The Several Ways in Which the Caribbean Strike Likely Was Unlawful

Even if the strike did not violate any of those three important legal rules, that doesn’t mean that it was lawful. Not even close. Indeed, an action such as this one appears to have been so manifestly unlawful that in any other administration, including Trump’s first, if anyone had even dared to propose it, virtually any and every attorney who got wind of it, across the government—and many non-lawyer officials, too—would have immediately dismissed it as obviously out-of-bounds. It wouldn’t have been a close call, and therefore it wouldn’t have required any detailed memoranda or extended debates.

Here’s a quick rundown on the array of legal problems that last Tuesday’s strike raises:

1. The Absence of Domestic Law Authority

Before turning to the legal prohibitions the strike appears to have violated, it’s important first to flag that it’s questionable whether the President had any affirmative legal authority to order the strike.

In his War Powers report, the President understandably did not rely upon any statutory authority—such as an existing Authorization to Use Military Force, a provision of Title 10, or anything in an appropriations law—because there is none. Nor does the State Department’s designation of Tren de Aragua as a “Foreign Terrorist Organization” and as “Specially Designated Global Terrorists” provide any authority for the President’s order to use lethal force. Even assuming that the State Department had a sufficient factual predicate for those designations, and even assuming further that the persons onboard the vessel were members of Tren de Aragua (which the War Powers report notably does not assert), the State Department designation merely triggers the government’s ability to implement asset controls and other economic sanctions under the International Emergency Economic Powers Act (IEEPA), the Immigration and Nationality Act (INA) and other statutes—it has nothing to do with authorizing DoD to engage in targeted killings … which is why the U.S. military doesn’t go around killing members of all designated Foreign Terrorist Organizations.

Trump therefore had no choice but to rely exclusively upon a claim of his “constitutional authority as Commander in Chief and Chief Executive to conduct United States foreign relations.” Yet that claim, too, is difficult to credit.

It’s true that the President has Article II authority to direct the military to use lethal force in some circumstances where it would not be reasonable to anticipate the use would result in “war in a constitutional sense,” such as to repel an imminent attack on the United States or acts of violence against U.S. troops or U.S. nationals abroad. And recent presidents and the Department of Justice have also asserted more contestable claims of inherent Article II authority to direct the use of military force in other situations that don’t involve threats to the nation or to U.S. persons—such as the claim in the first Trump administration that the president had the constitutional authority to order a strike on a Syrian airfield, in breach of the U.N. Charter, in order to deter the Assad regime from using chemical weapons again the Syrian population. (Notably, even in that case, the Trump administration emphasized that the military had undertaken “extraordinary measures to avoid civilian casualties,” to “comply with the Law of Armed Conflict,” and to take “[e]very precaution … to execute th[e] strike with minimal risk to personnel at the airfield”—it did not target civilians, as such.)

I am dubious about some of these recent assertions of Article II authority. (For example, I sharply questioned the Trump administration’s assertion of constitutional authority to strike Syria in 2017. I also have doubts about President Clinton’s assertion of authority to engage in the use of force for humanitarian purposes in Kosovo in 1999 (which was not defended on the basis of any OLC opinion asserting Article II authority).) Even if those assertions of authority were defensible, however, they didn’t involve the deliberate targeting of civilians, and I’m not aware of any basis for the extraordinary notion that either the Commander-in-Chief Clause or any implied constitutional “foreign relations” authority affords the President the power to order the military to kill any and all persons around the world who might (in the President’s view) be planning to commit crimes in the United States or otherwise be up to no good, particularly not in situations, like this one, where the military could prevent the suspected criminal activity with actions far short of lethal force. That’s why there’s virtually no historical precedent of any president ordering lethal force in a situation such as this.

The Article II assertion here—without which there would clearly would have been no affirmative authority for the Caribbean strike—thus is, at a minimum, unprecedented, and its implications are alarming. But even if there were a plausible Article II theory with respect to the President’s affirmative authority to order the strike, that would not matter if, as discussed below, the killing itself (or conspiring to do it) violated the U.S. criminal code (or the Uniform Code of Miliary Justice). In that case, any conceivable Article II authority would be constrained by those statutes.

2. The Assassination Ban

The Caribbean strike appears to have violated Section 2.11 of Executive Order 12333, which provides: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” As I’ve explained elsewhere (in connection with the targeting of Osama bin Laden—see Point 10 of the linked post), the “assassination ban” does not prohibit the targeting of persons in an armed conflict (if done in compliance with the laws of armed conflict), or as a legitimate act of self-defense to stop or prevent an armed attack—but this was neither, and therefore those who were involved in the strike appear to have violated the Executive Order, even if the President directed them to do so. (Yes, a president could revoke the assassination ban—but even Trump hasn’t done that … yet.)

3. Murder under Title 18 of the U.S. Code

Section 1111(b) of Title 18 of the U.S. Code makes it a felony to commit murder—defined as “the unlawful killing of a human being with malice aforethought”—within the “special maritime and territorial jurisdiction of the United States,” which is defined to include the high seas (see 18 U.S.C. § 7(1)). See also 18 U.S.C. § 956(a)(1) (making it a felony to conspire within the United States “to commit at any place outside the United States an act that would constitute the offense of murder … if committed in the special maritime and territorial jurisdiction of the United States” if “any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy”). Based upon the information that’s been made public thus far, there doesn’t appear to be any explanation for why the strike here, and the planning for it in the United States, did not violate these laws.

The Office of Legal Counsel has concluded (see pp. 12-30 here) that this and related federal criminal prohibitions do not apply if the targeted person is a member of enemy armed forces in a congressionally authorized armed conflict and the targeting conforms to the laws of armed conflict and other international law constraints. But that isn’t the case here: There’s no armed conflict (let alone one Congress has authorized) and the persons on the boat weren’t members of an armed force that has attacked the United States. The reasoning underlying the OLC opinion might also support the conclusion that the murder statute would not apply to a military killing on the high seas that was necessary to prevent an imminent lethal attack on the United States or on U.S. troops or nationals, even outside the context of an armed conflict. But even if that were so, there’s no indication (nor has the administration suggested otherwise) that the persons on the boat were about to do anything of the sort—and, in any event, as Mark Nevitt has explained, presumably the Coast Guard, with the Navy’s help, could have interdicted such a threat (had it existed) without destroying the boat and killing all those on board.

Thus, absent further facts that haven’t yet been disclosed, the strike would appear to have implicated the federal felony murder statutes.

My point here is simply to emphasize that Congress and the President have enacted laws prohibiting this conduct—wholly apart from the fact that it also prescribed criminal sanctions for any violations. I am certainly not suggesting that any operational Navy officers or other members of the armed forces should be prosecuted for violating these criminal statutes. Even if such military subordinates had grave doubts about the legality of the strike (a likelihood I discuss below), it’s fair to assume they were told that very senior officials, perhaps including the President, the Attorney General and/or the Secretary of Defense—and maybe including DoD attorneys, as well (such as the General Counsel)—had determined that the strike would be lawful. Particularly in these circumstances, criminal investigation and prosecution under the murder statutes should be almost unthinkable. The unlikelihood of prosecution, however, doesn’t change the fact that the conduct violated a duly enacted statutory prohibition.

4. The Murder Provision of the Uniform Code of Military Justice

Similarly, the DoD personnel who undertook (or authorized) the strike might have violated Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918, which provides that “[a]ny person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when such person— (1) has a premeditated design to kill; [or] (2) intends to kill … is guilty of murder.”

To reiterate my admonition in the section above about Title 18, I’m not suggesting that those personnel should be court-martialed for such an offense. Absent unusual circumstances, a prosecution shouldn’t be considered against persons who were acting at the President’s direction.

That said, the fact that President Trump apparently has authorized the military to use lethal force to target a boat filled with civilians does not mean that all subordinate officials should reflexively defer to, and comply with, any such orders issued at his direction. To be sure, as the Judge Advocate General Handbook explains, subordinates in the military chain of command must presume, in the ordinary course, that orders of superiors in the lawful chain-of-command are themselves lawful. Even so, in a “rare” case where “an order seems unlawful,” the subordinate should “not carry it out right away, but [should] not ignore it either.” She should, instead, “immediately and respectfully seek clarification of that order”; and if, after receiving a clarification (or after being informed that no clarification is forthcoming), a reasonable person “would recognize the wrongfulness of the act or order, even in light of a soldier’s general duty to obey, then the order is ‘manifestly illegal,’ and soldiers have a duty to disobey it.” The Commander’s Handbook on the Law of Naval Operations includes an admonition that certainly appears to be on point here: It notes that although “[a]n order requiring the performance of a military duty to act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate,” this inference “does not apply to a patently illegal order, such as one that directs the commission of a crime (e.g., an order directing the murder of a civilian [or] a noncombatant …”) (emphasis added).

We do not know whether, in the case of the September 2 strike, any military personnel asked for clarification when they were directed to destroy what appeared to be a private speedboat many miles from U.S. shores—or, if they did ask, what information their commanders might have offered them to explain why it might be lawful to destroy such a vessel and kill all those aboard. Nor do we know whether those commanders were permitted to seek and obtain the legal advice of Judge Advocates or counsel within DoD—and, if so, what the JAG Corps or other attorneys told them in response. It could well be that many of the relevant actors, including those who were most likely to provide reliable, objective legal advice, were deliberately kept out of the loop, thereby preventing commanders and subordinate personnel from being able to confirm whether there was any valid basis for orders that appeared to be of very questionable legality. If so, they were left with a very difficult dilemma. Perhaps their decision to comply with the order was reasonable, in light of all the extraordinary circumstances. Even so, unless they received compelling, relevant information that’s not yet publicly known, it’s difficult to imagine how those military officers or enlisted personnel might have concluded that the order here was not manifestly unlawful.

Again, even if that was where they found themselves, I don’t mean to suggest that they necessarily should have disobeyed an order purportedly made by the Commander in Chief—an obviously extreme course of action—let alone that they should be the ones held accountable for the stark deviation from the procedural and substantive norms. My purpose here is merely to point out that, absent facts that are not now presently known, the targeting of the vessel here certainly appears to have violated Article 118.

5. Customary International Law

The strike almost certainly violated fundamental principles of customary international law, too. What’s less certain is which customary laws governed here—a question that depends upon whether or not the strike occurred within an armed conflict.

It’s fairly clear, I think, that there was no such armed conflict before last Tuesday. Therefore the customary laws of armed conflict (LOAC) did not constrain DoD’s action unless the strike itself, which reportedly killed Venezuelan nationals, served to establish an international armed conflict between the United States and Venezuela even though it occurred on the high seas rather than in Venezuelan territory and against an unflagged vessel (a legal question that isn’t settled, as far as I know).

Assuming arguendo that the strike did, as a legal matter, initiate an international armed conflict between the United States and Venezuela, then it appears to have clearly violated the fundamental LOAC principle of distinction, which prohibits the targeting of civilian objects or of civilians (unless they were at the time directly participating in hostilities against the United States, which was clearly not the case here). Notably, the Commander’s Handbook on the Law of Naval Operations declares unequivocally that “[c]ivilians may not be made the object of attack and feasible precautions must be taken to reduce the risk of harm to them.” (The Handbook further defines a civilian as a person who is not a combatant or a “noncombatant,” with the latter term being defined as “members of the armed forces who are medical personnel and chaplains” or combatants who “become hors de combat (out of combat) by reason of wounds, illness, or capture.” There’s no basis—none in the public record, anyway—for thinking that the persons on the boat in the Caribbean were not civilians, whether or not they were planning any serious criminal activity.)

Alternatively, if the strike did not establish an international armed conflict, it would nevertheless have violated customary international human rights law. Article 6(1) of the International Covenant on Civil and Political Rights, to which the United States is a party, provides that “[n]o one shall be arbitrarily deprived of his life”—a prohibition that generally proscribes extra-judicial killings, at least outside the context of an armed conflict and apart from cases where lethal force is necessary to prevent imminent violence against others. So, for example, it would be unthinkable that the President could direct the military to use lethal force to kill foreign nationals in the United States simply because they were importing or dealing narcotics, or were suspected of committing or planning other crimes, in cases where such persons could be arrested and subjected to criminal process (i.e., where lethal force was not necessary to prevent them from an immediate use of violence against others). Such an extra-judicial killing by the military in the United States would obviously breach the ICCPR, at a minimum (in addition to the UCMJ, perhaps the Assassination Ban, and the Constitution and other laws, as well).

The United States has sometimes asserted that the ICCPR doesn’t apply outside the signatory state’s own jurisdiction—a deeply contested position. Even if that view were correct, however, it wouldn’t matter here, because the United States agrees that all States are bound throughout the world by customary human rights law, which is “considered part of U.S. law” (Operational Law Handbook at 98, citing, inter alia, The Paquete Habana, 175 U.S. 677 (1900))—and the United States further agrees that the prohibition on murder, reflected in Article 6 of the ICCPR, is a “peremptory norm[] so fundamental and universally accepted” that it does “not permit any derogation, even by treaty” and “bind[s] States during all operations inside and outside a State’s territory” (id.).

The Military’s Longstanding Commitment to the Fundamental Principle of Distinction Prohibiting the Targeting of Civilians

Perhaps the most alarming and potentially consequential thing about the Caribbean strike, however, is not that it was probably unauthorized by law or that it might have violated one or more of the legal rules described above, but instead that it was a stark—and, best I can tell, unprecedented—deviation from a sacrosanct Department of Defense policy that has governed the U.S. armed forces for many decades. (As I was finishing up this piece, Scott Anderson flagged a similar concern over at Lawfare, characterizing it as a “moral, if not legal” line that the military has now crossed. I agree with Scott, but my principal point here is to emphasize that that “moral” line has long been a cornerstone of formal DoD policy and practice.)

DoD Directive 2311.01 § 1.2(a) confirms the Department of Defense’s longstanding policy that not only must “[m]embers of the DoD Components comply with the law of war during all armed conflicts, however characterized,” but also that “[i]n all other military operations, members of the DoD Components will continue to act consistent with the law of war’s fundamental principles and rules, which include … the principle[] … of distinction.” (The DoD Directive also identifies the prohibitions in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, proportionality, and honor.) The Commander’s Handbook on the Law of Naval Operations provides likewise in § 5.2. Accordingly, members of the armed forces must comply with the principle of distinction regardless of whether the LOAC or other law requires it.

As far as I’m aware, the military inculcates in all its members the injunction that they must never target civilians with lethal force, with the discrete exception—not implicated here—of cases where such persons are participating directly in the conduct of hostilities against the United States or one of its allies (in which case lethal force may be used in order to prevent the person from continuing such hostile activities).^[2] The crossing of that sacrosanct line last Tuesday might prove to be an especially fateful event: It could presage a momentous change in DoD practices, and possibly establish a troubling precedent for militaries throughout the world.

Three Possible Scenarios: Why Did Military Personnel Agree to Such a Dubious Order?

In light of all the ways in which the Caribbean strike appears to have been unlawful, I agree with Ryan Goodman (quoted in the New York Times) that it’s “difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defense Department has long accepted.” Yet I think it’s even more difficult to imagine how the lawyers and operational personnel who were involved in the Caribbean operation came to disregard the fundamental, deeply inculcated DoD policy prohibiting the targeting of civilians with lethal force. What could their superiors possibly have said to them that might have led them to act as they did?

I can imagine at least three possible scenarios, but none of them offers a satisfactory answer to the puzzling question of how the armed forces here came to act contrary to the legal norms described above and, especially, the deep-seated DoD commitment to compliance with the principle of distinction.

First, high-level officials in the Pentagon, perhaps even the Secretary of Defense, might have instructed their subordinates that the legality of the strike was simply none of their business because such legal questions had been definitively resolved higher up the chain—perhaps even by the President or the Attorney General—and that it’s not the role of military lawyers and commanders, let alone operational personnel, to ask for an explanation or to assess the law themselves. (Trump has certainly hinted elsewhere at the latter view of interpretive exclusivity. See Executive Order 14215, § 7 (Feb. 18, 2025) (“The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.”).)

As I explained above, however, members of the armed forces are admonished not to comply with a “manifestly illegal” order—such, as for example (according to the Commander’s Handbook on the Law of Naval Operation) “an order directing the murder of a civilian [or] a noncombatant”—and thus where a subordinate receives an order that “seems unlawful,” such as to kill civilians, the subordinate should “immediately and respectfully seek clarification of that order.” If they did ask for “clarification” here, and if the response took the form of “the legal justification is none of your business” or “do it because the President (or AG) said so,” that certainly ought to have been inadequate to overcome an operational actor’s understanding that the order to strike a civilian target was manifestly illegal. It’s certainly very possible—understandable, even—that some of the persons in the chain of command would have followed the order nevertheless, given the terrible choice with which they were confronted. Even so, it’s difficult to imagine that such a summary sort of nonresponse would have been sufficient to cause all of the DoD personnel involved in the Caribbean strike to act in contravention of their understanding that it is impermissible to target a civilian vessel and to kill the civilians on board under circumstances such as these.

Second, I suppose it’s theoretically possible that high-level Pentagon officials told their subordinates that the destruction of the vessel was necessary because it was about to be used in an attack, i.e., that it presented an immediate threat to the safety of others. I think we can confidently assume, however, that this didn’t happen, for at least two reasons: (i) the administration itself hasn’t suggested that the boat was about to be used for an attack (indeed, no one has suggested the boat was going to be used for an attack at all); and (ii) in any event, the Secretary of State has acknowledged that the military could have interdicted the vessel but chose not to do so only because the President wanted “to send a message.”

Third, perhaps high-level Pentagon officials told their subordinates that the persons on the boat were not civilians, but were instead members of an enemy armed force that is engaged in an armed conflict with the United States. If that recharacterization of the individuals on the boat were correct, then DoD could, consistent with the LOAC and all of the other legal norms and policies described above, target those persons on the basis of their status as enemy forces. (Because superiors in the enemy chain of command can command such a person to use force against the other party to the armed conflict, it is permissible under the laws of war for that other party to attempt to weaken or incapacitate the enemy by killing or capturing that individual, even if the person isn’t engaged in hostilities at the moment of attack.)

There might be a hint of such an argument in Trump’s War Powers report, which states that certain (unidentified) drug-trafficking cartels have “have evolved into complex structures with … paramilitary capabilities” and that they “engag[e] in violence and terrorism that threaten the United States.” More telling, perhaps, is Trump’s March 15 Alien Enemies Act Proclamation, which alleges that Tren de Aragua has been engaged in “irregular warfare” in the United States. (As a panel for the United States Court of Appeals for the Fifth Circuit pointedly remarked last week, “[t]here is no description [in Trump’s declaration] of what is meant by irregular warfare.”) To similar effect, in informal remarks last Wednesday, Secretary of State Rubio said that “the point is the President United States is going to wage war on narcoterrorist organizations.” That was likely mere bluster and hyperbole, but it’s also possible that it reflected some sort of legal determination that’s been made within the Executive Branch that the United States and one or more drug cartels are engaged in an armed conflict.

Although this possible explanation is perhaps more conceivable than the first two, it, too, runs into serious difficulties.

For starters, the President’s War Powers report doesn’t assert that there’s an armed conflict, despite its vague reference to unidentified cartels’ “paramilitary capabilities.” I assume that if the administration were in fact relying upon an armed conflict rationale—and had used that rationale to explain to military personnel why they could destroy the boat—it would appear in some form or another in the War Powers report. But it doesn’t. (Indeed, the report doesn’t even refer to Tren de Aragua or any other identified organization or cartel.)

More importantly, it would be implausible to conclude that the United States is engaged in an armed conflict with TdA under the fairly well-established understanding of the conditions for a “noninternational” armed conflict in which the LOAC applies and parties may target persons on the basis of their status as members of enemy armed forces. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction ¶ 70 (Int’l Crim. Trib. for the former Yugoslavia Oct. 2, 1995) (“Armed conflict exists whenever there is … protracted armed violence between governmental authorities and organized armed groups”). For one thing, the administration hasn’t made any effort to demonstrate that TdA is an “organized” armed group with the sort of command structure that would render members targetable on the basis of their status because they’re subject to commanders’ direction and control. In addition, although TdA members have engaged in violent activity against individuals in the United States, there hasn’t been any protracted armed violence between U.S. authorities and TdA. Indeed, last Tuesday’s strike might have been the only instance of such armed violence between those two parties. Therefore, any assessment within the administration that there is an ongoing armed conflict with TdA would be on especially weak legal ground.

Moreover, if the Department of Defense were to begin acting upon the assumption that the United States is engaged in an armed conflict with TdA, the possible implications could be staggering. Would it mean that the military could indefinitely detain TdA members found in the United States as enemy combatants? (That was the question raised but not definitively resolved in the al-Marri case back in 2008-2009.) Could it target them in the United States?

For all of these reasons, I assume that military attorneys would have been deeply skeptical had they been told that the boat could be targeted on an “armed conflict with TdA” theory.

And so the mystery remains: If none of these three explanations would have been enough to persuade military personnel to destroy what appeared to be a civilian vessel, what other explanation is there?

– – – – – – – – – – – – –

1. If the boat had been a Venezuelan-flagged vessel, or if the United States destroyed it because it believed those on the boat were acting at the direction of the Maduro regime, then the strike would have violated Article 2(4), notwithstanding President Trump’s vague assertion, in his War Powers report to Congress, that he ordered the strike for purposes of “self-defense” in order to “address [a] continuing threat to United States persons and interests.” To be sure, Article 51 of the Charter provides that Article 2(4) should not be read to “impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” This strike, however, couldn’t be justified as an exercise of “the inherent right of individual … self-defence” because the prerequisite of an “armed attack” on the United States was not present.The administration hasn’t suggested that there was any evidence that the boat itself was headed to the United States for purposes of an armed attack against the United States, i.e., where the U.S. would be (as the official French version of Article 51 indicates) the object of an armed attack (“est l’object d’une agression armée”). And even if there had been such evidence, the “inherent” right of self-defense would permit a use of force in response only if, inter alia, it were necessary to prevent that armed attack against the United States—i.e., only if “no reasonable alternative means of redress are available.” This precondition could not have been met here given Secretary Rubio’s representation that the military could have interdicted the vessel but chose instead to kill those on board only because the President wanted to “send a message.” Nor has the Administration asserted that persons on the boat, or the (unidentified) “organization” with which the boat was “affiliated,” had previously engaged in armed attacks against the United States and were planning to continue an ongoing series of such armed attacks in a way that might justify a use of force to deter such attacks.Last Wednesday, a White House spokesperson Anna Kelly issued a statement saying that the strike was taken “in the collective self-defense of other nations.” The President, however, didn’t make such a claim in his War Powers report, and for good reason. There’s no evidence that there was anything “collective” about the strike—no sign, that is, that the United States took the action at the request of, or in coordination with, any allies or partners who were subject to armed attacks from those on the boat or the organization with which the vessel is alleged to have been “affiliated.” ↑
2. In the context of an armed conflict, the military will sometimes target a facility or other object that is commonly considered a civilian object—such as an oil transportation asset or a bulk cash storage site—that has become a valid military objective because (in the words of former DoD General Counsel Jennifer O’Connor) it “make[s] an effective contribution to the enemy’s ability to conduct or sustain combat operations” and that contribution is “definite,” a condition that is unlikely to be satisfied where the “causal chain between an object and its contribution to military action will generally make the military advantage to be gained from its destruction less certain, and more remote.” As O’Connor explained, even in such cases, the military will always take precautions to minimize the civilians harmed by the attack upon the military objective, including by “ordering the attack to occur at a time when the potential for any civilian casualties was deemed to be the lowest,” and will abstain from the attack if the expected incidental harm to civilians or civilian objects would be excessive in relation to the anticipated concrete and direct military advantage”—a requirement imposed by the principle of proportionality. The September 2 attack in the Caribbean obviously was not a strike of this sort—indeed, it didn’t occur in an armed conflict at all, and therefore could not have been undertaken in order to degrade an enemy armed force’s ability to conduct or sustain combat operations against the United States. ↑

The post The Many Ways in Which the September 2 Caribbean Strike was Unlawful … and the Grave Line the Military Has Crossed appeared first on Just Security.

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:

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).

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.)

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).

– – – – – – – – – – –

[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

The post Taking Stock of the Birthright Citizenship Cases, Part III: DOJ’s Arguments Regarding Domicile and Unauthorized Immigrants appeared first on Just Security.

A couple of weeks ago, I published a long post about the Supreme Court’s recent decision in Trump v. CASA, Inc., in which I assessed (among other things) how the Court’s decision might affect the nonsubstantive questions that remain open and contested in the lower court cases. The remaining posts in this series, beginning with this one, are about the substantive merits of the challenges to the Trump Citizenship Order. Of course, by now many scholars and lawyers have written a great deal about this issue. I don’t intend to rehash all of that here. Instead, my focus in this and the remaining installments of this series is on the Department of Justice’s arguments in support of the Trump Citizenship Order in the courts of appeals, because those arguments are likely to shape how the Supreme Court approaches the question when it eventually considers the merits.

Recently, in Washington v. Trump, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court to opine on the legality of Trump’s attempted redefinition of birthright citizenship. Like every other court (or Supreme Court Justice) to have addressed the merits in the past few months, the Ninth Circuit panel concluded that the purported limits on birthright citizenship in the Trump Citizenship Order are likely to be inconsistent with the Citizenship Clause found in Section 1 of the Fourteenth Amendment. The panel also held that the Citizenship Order likely violates the statutory provision establishing birthright citizenship, 8 U.S.C. § 1401. (These holdings, like those of other courts, were framed in terms of the “likelihood” of unlawfulness because they were issued at a preliminary stage in the litigation. None of the courts, however, has concluded that it’s a close question and the issue has been fully briefed; in other words, “likelihood” is a virtual certainty here.)

As the Supreme Court noted in its decision in Trump v. CASA, Inc. (pp. 24-25 n.18), the Solicitor General committed to the Court that he would “absolutely” seek certiorari when the Government lost one of its pending appeals. Therefore, presumably the SG will petition for certiorari from the Ninth Circuit decision sometime in the next few weeks or months (assuming the court of appeals doesn’t hear the case en banc).

[UPDATE:  In a brief filed in the district court in Washington recently, DOJ attorneys represented that “[i]n light of the Ninth Circuit’s decision, … the Solicitor General plans to seek certiorari expeditiously to enable the Supreme Court to settle the lawfulness of the Citizenship Order next Term, but he has not yet determined which case or combination of cases to take to the Court,” and thus “Defendants are currently considering whether to seek further review of this Court’s preliminary injunction In light of the Ninth Circuit’s decision.”  (h/t:  Adam Liptak)]

On August 1, the U.S. Court of Appeals for the First Circuit heard two oral arguments in three other cases raising the merits issues—two from U.S. District Court for the District of Massachusetts (O. Doe v. Trump and New Jersey v. Trump) and the third from the U.S. District Court for the District of New Hampshire (New Hampshire Indonesian Community Support v. Trump). Until recently, an appeal was also pending in the U.S. Court of Appeals for the Fourth Circuit in CASA, Inc. v. Trump, but on July 29 that court dismissed the appeal and remanded the case to the district court, which has now entered a new preliminary injunction protecting a certified class of plaintiffs that includes every child born after February 19, 2025 who’s covered by the Citizenship Order. That classwide preliminary injunction conforms with another such injunction that a district court in New Hampshire entered on July 10. The Government has yet to appeal either of these classwide preliminary injunctions, but it might do so soon.

Judge Ronald Gould’s opinion for the Ninth Circuit in Washington v. Trump, joined by Senior Judge Michael Daly Hawkins, nicely summarizes the judiciary’s uniform views on the merits thus far. (Judge Patrick Bumatay dissented on questions related to the standing of States to challenge the implementation of the Citizenship Order. He did not address the merits.) Interested readers should start with the relevant section of Judge Gould’s opinion (see pages 24-43) in order to understand the merits questions. The remainder of this series offers a deeper dive into certain important and/or underemphasized aspects of the Department of Justice’s arguments in defense of the Citizenship Order.

In this post, I evaluate DOJ’s lead argument in each of its appellate briefs, which is an argument about what the key, contested phrase in the Citizenship Clause—“subject to the jurisdiction [of the United States]”—allegedly cannot mean.

According to DOJ, the plaintiffs’ proposed construction, which the Ninth Circuit, several district courts, and three Supreme Court Justices in Trump v. CASA, Inc. have now adopted, simply can’t be right because (according to DOJ) it’s inconsistent with at least two of the accepted, historical exceptions to birthright citizenship. My primary objective in this post is to explain why, properly understood, the plaintiffs’ reading of “subject to the jurisdiction thereof,” derived from the Supreme Court’s governing opinions in Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898), does justify the three established exceptions but does not cover the two categories of U.S.-born persons described in the Trump Citizenship Order.

The next article will examine DOJ’s principal affirmative reading of “subject to the jurisdiction thereof,” which is that it requires a person born in the United States also to be domiciled here on the date of birth in order to be a birthright citizen. That post will explain why DOJ’s “domicile” argument can’t be reconciled with the ratio decidendi of the Supreme Court’s governing opinion in Wong Kim Ark. It’ll also highlight an important, and widely overlooked, aspect of DOJ’s affirmative argument, which is that it’s almost entirely devoted to defending the second (and less numerous) category of persons identified in Section 1 of the Trump Citizenship Order—persons born in the U.S. to women who were, on that date, lawfully but temporarily present in the country (for example, on a work or student visa). As the post will discuss, DOJ’s reading of the Citizenship Clause offers almost nothing in support of the Order’s declaration that the first, and much larger, category of persons—those born in the U.S. to women who, on the date of birth, were not legally authorized to be in the country—are not birthplace citizens.

In my final post, I’ll address plaintiffs’ (and certain amici’s) statutory argument, which is independently sufficient to demonstrate that the Trump Citizenship Order is unlawful. That article will explain that DOJ’s argument about the relevant statutory enactments—in 1940 and 1952—is based upon an unconvincing account of the public and governmental understanding of the scope of birthright citizenship in the decades between Wong Kim Ark and 1952.

* * * *

The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll 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.” A federal statute Congress first enacted in 1940, and re-enacted in 1952, likewise provides, in materially identical language, that “a person born in the United States, and subject to the jurisdiction thereof,” shall be a national and citizen of the United States “at birth.” 8 U.S.C. § 1401(a).

On the first day of his second term, President Donald Trump issued the Citizenship Order. Section 1 of that Order declares that neither the Fourteenth Amendment nor the federal statute guarantees U.S. citizenship for two categories of persons who were born in the United States to a father who wasn’t a citizen or lawful permanent resident at the time of the person’s birth: (1) those whose mothers were “unlawfully present” in the United States on the person’s date of birth; and (2) those whose mothers were lawfully present in the United States on a temporary basis, such as on a student, work, or tourist visa, on the child’s date of birth. (Sections 2 and 3 of the Order direct Executive agency officials to implement President Trump’s new definition of citizenship in particular ways. I discuss those aspects of the Order in my earlier article.)

All parties in the various suits agree that the legality of the Citizenship Order turns on the constitutional and statutory phrase “subject to the jurisdiction thereof.” The Court of Appeals for the Ninth Circuit recently concluded that that phrase means, simply, “subject to the laws and authority of the United States,” such that an individual born in the United States is a citizen if, on the date of birth, she was “subject to” the regulatory authority of federal law—unless she falls within one of three discrete historical exceptions. Justice Sonia Sotomayor offered a similar formulation in her dissenting opinion in Trump v. CASA, Inc.: “To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws. … As the Government would presumably concede, virtually everyone born in the United States and present in its territory is subject to its authority and its laws.”

DOJ offers a different understanding of “subject to the jurisdiction [of the United States]”—a very unusual, counterintuitive reading that depends upon whether the individual in question (the newborn) was “domiciled” in the United States on the date she was born here. As the next article in this series will explain, and as the Ninth Circuit held in its recent Washington v. Trump decision, DOJ’s affirmative, domicile-dependent argument about the scope of the Citizenship Clause is (at best) unconvincing in light of the Court’s rationale in Wong Kim Ark.

There is, however, one aspect of DOJ’s argument that appears to be much more formidable, at least on first glance. At the outset of each of its appellate briefs, DOJ argues that the definition of “subject to the jurisdiction [of the United States]” that the plaintiffs and the courts have adopted—in the Ninth Circuit’s words, being “subject to the laws and authority of the United States” at birth—simply can’t be right because (according to DOJ) it doesn’t account for at least two of the three well-recognized exceptions for categories of persons who, everyone agrees, are not deemed citizens on the basis of their birth in the United States—the children of diplomats and persons who are members of Indian tribes at birth. If the plaintiffs’ reading were correct, says DOJ (see, e.g., its opening brief in New Hampshire Indonesian Community Support at 9), it would leave the term “jurisdiction” “without a coherent meaning,” and would read the “subject to the jurisdiction thereof” condition “out of the Citizenship Clause, since everyone born or present on U.S. soil is subject to U.S. regulatory jurisdiction.” See also id. at 13-16 (purporting to explain how Congress has the power to subject persons in each of the excepted categories to regulation). And therefore, DOJ insists, “jurisdiction” in the Citizenship Clause must have some other, less familiar meaning.

The first problem with DOJ’s critique of plaintiffs’ (and the courts’) reading is that it caricatures that reading. The plaintiffs in each of the cases readily concede (or presumably they’d do so if pressed) that Congress has the power to regulate the persons described in at least two of the three historically exempt categories (i.e., all but the children of occupying forces). After all, as Justice Horace Gray wrote for the Court in Wong Kim Ark itself (pp. 683-684), quoting Chief Justice John Marhsall in The Schooner Exchange, “‘[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.’” The plaintiffs do not take issue with that proposition. Their argument is, instead, that “subject to the jurisdiction [of the United States]” refers to whether the individual in question was in fact bound by federal law at the moment of birth, rather than to whether Congress had the constitutional power to regulate that newborn person.[1]

Even so, this “negative” aspect of DOJ’s argument has at least some superficial analytic force by virtue of the fact that U.S. law does regulate, at least in some measure, two of the historically exempted categories of newborns—those born to foreign ambassadors and ministers, and those who are members of federally recognized Indian tribes. If that is so—i.e., if those categories of U.S.-born persons are not citizens (as all agree) even though they are subject to U.S. law—then how can it be that, as Justice Sotomayor put it, “[t]o be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws”? That puzzle is the thrust of DOJ’s lead argument.

As I’ll explain in this article, however, not only is there a throughline that connects each of the three historical exceptions, but that common ground does, indeed, depend upon the application of U.S. regulatory law to the categories of newborns in question (rather than merely to their parents). The common ground, however, is not quite as simple as whether Congress has authority to regulate such persons (it does) or whether Congress has actually regulated their conduct in some degree (which it has, at least as to some of the excepted categories). Instead, as the Supreme Court explained in Wong Kim Ark (quoting its earlier decision in Elk v. Wilkins), each of those excepted categories describes persons whoare, at birth, immune in a material respect from the application or enforcement of U.S. law, such that they are not “completely subject” to the “political jurisdiction” of the United States.[2]

* * * *

Before I examine more closely the Court’s gloss on the “subject to” phrase and explain how it is designed to encompass the three recognized exceptions—and only those exceptions—it’s important to emphasize that the Court’s reading of the Citizenship Clause was powerfully influenced, and perhaps ultimately determined, by its understanding of why the framers of the Clause included that qualifying language in the constitutional provision. That doesn’t mean the words of the phrase are unimportant. Indeed, Justice Gray acknowledged in Wong Kim Ark that “the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment,” and that “the debates in Congress are not admissible as evidence to control the meaning of those words.” 169 U.S. at 699 (emphasis added). Nevertheless, Gray stressed that legislators’ statements were “valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves,” id., and, of greater significance here, the ultimate touchstone for the Court’s holdings was “the intention of the Congress which framed and of the States which adopted this Amendment”—i.e., the Court’s assessment of what the framers were trying to accomplish. Cf. King v. Burwell, 576 U.S. 473, 498 (2015) (“A fair reading of legislation demands a fair understanding of the legislative plan.”).

So what was the framers’ objective? In Wong Kim Ark, the Court held that the Citizenship Clause is “declaratory in form, and enabling and extending in effect.” 169 U.S. at 676. Thus, explained Justice Gray, the Clause is “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Id. (emphasis added). (That understanding reflected the views of Senator Jacob Howard of Michigan, who introduced the Clause. Howard characterized the amendment as “simply declaratory of what I regard as the law of the land already.” Cong. Globe, 39th Cong., 1st Sess., at 2890.)

Accordingly, far from establishing an open-ended condition that might apply to various additional categories of U.S.-born persons whom the framers had not contemplated, “[t]he real object” of the “subject to the jurisdiction thereof” phrase apparently was, instead, simply “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.” Wong Kim Ark, 169 U.S. at 682.

In other words, in order to be faithful to the framers’ objectives, the Court construed the “subject to the jurisdiction thereof” phrase as establishing a ceiling of those U.S.-born persons who are excepted from the baseline citizenship guarantee, rather than a general standard that might result in further exceptions for additional, unforeseen categories of native-born persons.

Until very recently, the fact that the “real object” of the Citizenship Clause was to establish a hard-and-fast general rule with a small handful of discrete, established exceptions would have been virtually sufficient, in and of itself, to decide the question of whether the Trump Citizenship Order is constitutional. It wouldn’t have been necessary to explain whether and how the Trump categories materially differ from the established exceptions. The only reason DOJ’s critique of the plaintiffs’ position might have any purchase at all in 2025 is that some Justices on the current Court purport to be far more textualist than the Court has been in previous eras—including in 1898, when it decided Wong Kim Ark—and concededly it’s difficult to understand the scope of the conditional clause merely by viewing the words in isolation, given the consensus about the three preserved exceptions.[3]

Even in this purported age of textualism, however, there’s nothing to prevent the Court from using such a “framers’ objectives” lens in resolving the challenges to the Trump Citizenship Order. Indeed, that approach would be fully consistent with the way the modern Court itself—including self-professed textualist Justices—approaches another very important, familiar part of Section 1 of the Fourteenth Amendment. The Citizenship Clause is the first sentence of Section 1. The much more well-known second sentence of Section 1 then famously provides that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” Read literally, that clause might appear to prohibit states from drawing just about any legal distinctions whatsoever among persons; its language, like “subject to the jurisdiction thereof” one sentence earlier, is remarkably open-ended. Yet in construing the Equal Protection Clause, the Court has developed an elaborate edifice of doctrinal distinctions among different forms of discrimination that has no grounding in the text.

For example, as Justice Amy Coney Barrett recently pointed out in her concurring opinion in United States v. Skrmetti, the Court has generally adhered to “the principle that ‘[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes’” (quoting Cleburne). In contrast, the Court has created various tiers of “scrutiny” that are to apply to some other grounds of discrimination in state and federal laws (e.g., race, national origin, and sex)—a method, as Justice Barrett noted, the Court has derived from Carolene Products footnote 4 rather than from the text of Section 1. The Court has also established “tests” that are to be applied at each level of scrutiny; and has applied such tests to countless different factual scenarios. The result is that, notwithstanding the broad prohibitory language of the Equal Protection Clause, grounds of distinction found in state statutes are ordinarily permissible … but not invariably.

In creating and adjudicating all of these fine-grained distinctions, the Court has virtually always disregarded the broadly worded constitutional text entirely; instead, the Court has focused on what the Justices believe to be “the real object[s] of the Fourteenth Amendment,” 169 U.S. at 682, just as the Court did when construing the Citizenship Clause in Wong Kim Ark.

Examples of the Court’s text-free, purpose-centered application of the Equal Protection Clause are legion. Most recently, Chief Justice John Roberts explained in Students for Fair Admissions v. Harvard (2023)—as he had in earlier cases—that the Court applies strict scrutiny to race-specific distinctions, including affirmative action laws, not because of any textual command, but instead to reflect “‘[t]he clear and central purpose of the Fourteenth Amendment … to eliminate all official state sources of invidious racial discrimination in the States’” (quoting Loving v. Virginia). In that same case, Justice Clarence Thomas insisted that the Equal Protection Clause requires strict color-blindness “with no textual reference to race whatsoever”—indeed, even though Congress chose not to use an earlier proposal from Representative Thaddeus Stevens that would have provided expressly that “[n]o discrimination shall be made by any State nor by the United States as to the civil rights of persons because of race, color, or previous condition of servitude.” According to Thomas, the lack of a textual hook is no matter; it’s sufficient to point to the “equality vision reflected in the history of the Fourteenth Amendment’s enactment.” (Thomas further noted that the Court applies strict scrutiny to race discrimination by the federal government even though the Fifth Amendment doesn’t include an equal protection clause at all (citing Bolling v. Sharpe).) Similarly, in last Term’s decision in Skrmetti, the extensive debate between Justices Barrett and Sotomayor about whether discrimination against transgender persons should be subject to heightened scrutiny included discussion of many factors, but the text wasn’t among them.

If the Court were to apply a similar sort of analysis to the Citizenship Clause, with an emphasis on the “real object” (Wong Kim Ark) or “clear and central purpose” (SFFA) of the Clause, then it would be clear as day that the Trump Citizenship Order directs federal officials to act unconstitutionally, because (as the Court has already held in Wong Kim Ark) the framers’ object in including the “subject to the jurisdiction” qualifier was simply to codify the three established exceptions, and nothing more. There would be no need for the Court to discern or apply any sort of Grand Unified Theory of what “subject to the jurisdiction thereof” means for categories of U.S.-born persons who don’t fall within one of those three established exceptions.

* * * *

In any event, the Supreme Court already has determined the proper way to apply the qualifying phrase to various categories of native-born persons, and it did so in a way that fully accounts for the three established exceptions the framers intended to preserve.

There are only two Supreme Court decisions interpreting the Citizenship Clause—Elk v. Wilkins (1884) and Wong Kim Ark (1898). Justice Gray wrote the opinion for the Court in each case. “The evident meaning” of the phrase “subject to the jurisdiction thereof,” wrote Gray in Elk, “is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” 112 U.S. at 102 (emphasis added); see also Wong Kim Ark, 169 U.S. at 680 (quoting this holding from Elk); Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. 99, 155 (1830) (Story, J., dissenting) (“the party must be born within a place where the sovereign is at the time in full possession and exercise of his power”).

In other words, in order to explain the established exceptions that the framers uncontrovertibly intended to preserve, the Court concluded that the “subject to” phrase must be construed to have an implied modifying adverb: “completely.” Accordingly, the determinative question the Court asked in both cases (the “test,” in a sense, that it employed) was whether U.S. law entirely regulated the conduct of the person claiming citizenship himself—not his parents—on the date of his birth in the United States.

Before turning to examine how Justice Gray’s formulation explains the three established exceptions, it’s important to address two conceptual matters.

First, in its appellate briefs in the pending cases, DOJ oddly insists that the Court’s use of the term “political jurisdiction” in Elk (which Justice Gray then repeated in Wong Kim Ark) did not refer to the federal Government’s regulation of an individual’s conduct. See, e.g., Appellants’ Reply Brief in New Hampshire Indonesian Community Support at 4-7. Yet Justice Gray made clear in Wong Kim Ark that even a temporary visitor to the country is “subject to the political jurisdiction” of that nation’s government in the sense that “‘for so long a time as he continues within the dominions of [the] foreign government’” he “‘owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be.’” 169 U.S. at 693-94 (quoting Secretary of State Webster’s report in Thrasher’s Case). In other words, the Court itself used the term “political jurisdiction” to mean the government’s exercise of regulatory or prescriptive authority.

Best I can tell, DOJ’s argument that “political jurisdiction” “cannot mean regulatory jurisdiction,” Reply Brief in New Hampshire Indonesian Community Support at 7, is predicated entirely on the fact that the Court held in Elk that tribal Indians were not completely subject to the “political jurisdiction” of the United States even though it “was well settled when the Citizenship Clause was ratified that the United States could exercise regulatory power over Indian tribes,” id. at 6. As I’ve tried to explain in this post, however, the holding in Elk was based on the fact that Congress generally had not exercised its available regulatory authority against tribal members and thus had chosen not to subject them to Congress’ “complete” regulatory jurisdiction. There’s nothing inconsistent between that holding and the fact that Congress could have exercised regulatory power over tribal Indians.

Nor does DOJ offer any plausible alternative meaning of “political jurisdiction.” DOJ posits that an individual is only subject to the “political jurisdiction” of a nation if she owes that nation “allegiance.” That gets things backwards: required allegiance (at least while one is present in a state) is an incident of being subject to a state’s political jurisdiction, rather than a precondition for being subject to that jurisdiction. In any event, DOJ’s alternative understanding doesn’t support their argument: As the Wong Kim Ark passage quoted above, as well as others, establishes, and as the next post in this series will explain in greater detail, the Court held that even persons temporarily visiting the nation do owe it “allegiance” in the relevant sense—that is, they “owe[] obedience to the laws of that [nation’s] government,” 169 U.S. at 694—while they are present within its territory.

Second, there’s concededly something formalistic about a reading of the Citizenship Clause, such as the one the Court adopted, that turns on a fact about whether federal law regulates a person’s conduct at the moment of their birth in the United States. To be sure, persons born in U.S. territory technically owe obedience to federal law on their date of birth; they are prohibited, for example, from violating any part of the federal criminal code. But what does that matter, given that they aren’t aware of that law and, in any event, can’t form the requisite mens rea? Likewise, as the Court in Wong Kim Ark explained, 169 U.S. at 680, it’s true that individuals born in the United States presumptively owe the United States “direct and immediate allegiance” from the very moment of their birth. But, again, that’s effectively a legal fiction that has little or no practical significance, at least during infancy, given that a newborn can’t choose whether or not to honor such a duty.

Even so, the language of the Citizenship Clause does appear to make regulatory, i.e., prescriptive, jurisdiction over the child relevant to the question of birthright citizenship; and, more to the point, the Supreme Court held, in both Wong Kim Ark and Elk, that the phrase “subject to the jurisdiction thereof” turns on whether the United States exercises complete “political jurisdiction” (i.e., prescriptive authority) over a person at the moment of his or her birth in the United States.[4] As I’ll now elaborate, that gloss on “subject to the jurisdiction thereof” explains each of the three categories of persons born in the United States who are not deemed citizens at birth. By contrast, it does not encompass the two categories of U.S.-born persons described in the Trump Citizenship Order.

1. Persons Born to Occupying Enemy Forces

This is the easiest of the three established exceptions to understand, because it involves a situation in which the territorial government of the relevant nation is disabled from exercising regulatory jurisdiction over the persons in question. If, for instance, military forces of an enemy nation were to occupy and govern the territory of the United States, the U.S. government established by the Constitution would lack the ability to apply or enforce its law as to anyone. To be sure, in such a case the foreign nation wouldn’t establish territorial sovereignty (see Chris Mirasola); nevertheless, the newborn child of one of those invading forces wouldn’t in any practical sense be subject to the regulatory jurisdiction of the sovereign occupied state, let alone be “completely subject” to it. Justice Gray explicated this exception at page 683 of Wong Kim Ark, where he quoted at length from Justice Joseph Story’s opinion for the Court in United States v. Rice (1819):

In United States v. Rice, (1819) 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: “By the conquest and military occupation of Gastine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.”

The “foreign enemy occupation” exception does, however, raise one thorny question. What about other children born during such an occupation, including to the citizens of the occupied state itself? Like the children of the occupying forces, they are not in a practical sense subject to the jurisdiction of the “native” nation at birth because the government of that state has been displaced. Does this mean that they’re not birthright citizens and therefore must be naturalized after the occupation ends in order to become citizens?

I haven’t studied how the common law treated such persons, but I imagine that it deemed them to be birthright citizens after the occupation, in contrast with the children born to the occupiers themselves. That is, in any event, what Justice Story himself suggested in his dissenting opinion in Inglis v. Trustees of Sailors’ Snug Harbor (1830). Story explained (28 U.S. at 156) that “the children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth although they were then under the actual sovereignty and allegiance of an enemy.” (The majority in that case didn’t disagree with Story on this point—they didn’t address it because the case itself didn’t concern a dispute about birthright citizenship.) I assume Story was right about that, but it hardly matters whether his is the best explanation because—fortunately—this isn’t a conundrum the United States has had to deal with for centuries, if ever.

2. Persons Born to Foreign Ambassadors and Ministers

The second established exception is that the children of foreign ambassadors and ministers born in the United States are not U.S. citizens by virtue of their native birth because the national government has afforded them a particular sort of immunity from the enforcement of domestic law. See Wong Kim Ark, 169 U.S. at 685 (incorporating Chief Justice Marshall’s description in The Schooner Exchange (1812) of the form of diplomatic immunity that protects “foreign ministers”).[5] Notably, this exception is uncontroverted despite the fact that such persons are “subject to the jurisdiction” of the United States in the sense that they are obligated to comply with U.S. law.

It’s a mistake to assume, as many commonly do, that doctrines of “diplomatic immunity” afford foreign ministers and their families—let alone all foreign representatives—a right to violate domestic law while they’re present in the United States. Even the foreign representatives protected by the strongest form of such immunity—“personal inviolability,” which is the common label for the sort of immunity the Court discussed in Wong Km Ark—are generally subject to U.S. law, in at least two important senses: (i) they have a legal obligation to comply with the law; and (ii) law enforcement officials can constrain them from committing offenses. They also can be removed from the United States if they violate its law, and they can even be subjected to trial for violating the law if their home country consents.[6] Thus, as the State Department explains, “[i]t should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions.”

The more limited effect of the doctrine of personal inviolability is, instead, that covered diplomatic representatives (and their family members) may not be subjected to criminal trial or sanction (nor to civil proceedings, either, except under particular circumstances) for violating the law of the host state, absent the consent of their home state. Moreover, in most cases they can’t be arrested or held in custody, either, though they can be temporarily interdicted in order to prevent them from violating the law.

This is a longstanding norm of international relations, which now appears in the Vienna Convention on Diplomatic Relations. Such personal inviolability is only available by virtue of the host state’s consent, see Won Kim Ark, 169 U.S. at 684, but virtually all nations confer it, not only because they have entered into a treaty requiring it, but also because their ability to engage in foreign relations would be significantly compromised if they didn’t extend such inviolability. As Chief Justice Marshall wrote in The Schooner Exchange (quoted in Wong Kim Ark, 169 U.S. at 685), “without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission.”

The First Congress codified the personal inviolability rule in Section 25 of the 1790 Crimes Act, 1 Stat. 117-18,[7] and it remains U.S. law today.[8] Under current law, as under early American law, such personal inviolability extends only to diplomatic agents and to family members who are part of their households—including newborns.[9]

Because the children of such diplomats themselves enjoy personal inviolability, they don’t become U.S. citizens when born in the United States. This exception carries over into the Constitution the common law rule that the Citizenship Clause incorporates. See Wong Kim Ark, 169 U.S. at 658 (“every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born) (emphasis added)).

Importantly, children born in the United States to all other sorts of foreign representatives are citizens pursuant to the Fourteenth Amendment because they are not protected by the personal inviolability rule. For example, although consular officials enjoy some limited forms of immunity when performing official acts, they and their families aren’t entitled to the personal inviolability that diplomats and their families have even for conduct undertaken in their personal capacity, because the consuls don’t represent their home nations in the conduct of foreign relations. See Foreign Ministers, Consuls, Etc., 1 Op. Att’y Gen. 406 (1820); see also Respect Due to Consuls, 1 Op. Att’y Gen. 41, 42 (1794) (because a consul “is not in any degree invested with the representative character[,] it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister”). Therefore, their U.S.-born children are birthright citizens, in contrast to the children of diplomats. (Check out, for example, the extraordinary case of Moncada v. Blinken, 680 F. Supp. 3d 1190 (C.D. Cal. 2023), in which the State Department treated the plaintiff as a citizen for many decades based upon the assumption that he’d been born while his father was serving as Nicaraguan Consul in New York, only to have the first Trump Administration strip him of citizenship—and revoke his passport—when it determined that his father had become an attaché to the permanent mission of Nicaragua to the United Nations, a diplomatic position subject to full personal inviolability, before the plaintiff was born.)

The children-of-diplomats exception, then, is not a case, akin to foreign occupation, in which the federal government is incapable of exercising its jurisdiction over the newborns in question. It may do so, but it has chosen, in light of international law obligations and diplomatic norms, to confer upon them a form of partial immunity—freedom not from the application of domestic law but from being subject to certain means of enforcement of that applicable law. In this respect the United States has “‘waive[d] the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.’” Wong Kim Ark, 169 U.S. at 684 (quoting The Schooner Exchange) (emphasis added). Personal inviolability of the child of a foreign minister, which is “traced up to [the Government’s] own consent, express or implied,” thus creates an exception to the exercise of the Government’s “full and absolute territorial jurisdiction” that it is entitled to exercise. Id. at 686. And that, according to the Court in Wong Kim Ark, is sufficient to trigger an exception to the rule of birthplace citizenship, because although children born to diplomatic agents in this country are subject in some respects to the federal government’s “political jurisdiction,” they aren’t “completely subject” to it (id. at 680).[10]

3. Persons Born as Members of Indian Tribes

The final exception is the one the Court recognized in Elk—the only one of the exceptions that doesn’t have its genesis in the common law. A person who, at birth, is a member of an Indian tribe is not deemed a U.S. citizen pursuant to the Fourteenth Amendment, even if (as in Elk) they later purport to leave the tribe and pledge full allegiance to the United States. See Elk, 112 U.S. at 102 (holding that the “subject to” phrase relates to the time of birth rather than the date on which the individual seeks to be treated as a citizen). (This constitutional exception is no longer of practical importance because in 1924 Congress enacted a statute conferring citizenship upon persons who are born in the United States to a member of an Indian tribe. See 8 U.S.C. § 1401(b).)

In support of its argument that the plaintiffs’ reading of “subject to the jurisdiction [of the United States]” must be wrong, DOJ emphasizes that this tribal exception exists despite the fact that Congress has the constitutional power to regulate the conduct of tribal members—even on Indian lands and with respect to other tribal members—and that Congress has exercised that authority (relatively rarely before ratification of the Fourteenth Amendment, but more commonly after 1871). According to DOJ (reply brief in New Hampshire Indonesian Community Support at 5), “plaintiffs’ articulation of the legal standard is clearly incompatible with the Supreme Court’s treatment of tribal Indians, who plaintiffs concede are subject to the government’s regulatory jurisdiction, … but are nonetheless not ‘subject to the jurisdiction’ of the United States for the Citizenship Clause, Elk, 112 U.S. at 102.”

The Court’s holding in Elk, however, wasn’t predicated on the (incorrect) supposition that Congress is constitutionally disabled from regulating members of tribes. The Court recognized that Congress has such authority. See 112 U.S. at 107 (discussing an 1871 statute, Act of March 3, 1871, ch. 120, the effect of which was “to require the Indian tribes to be dealt with for the future through the legislative and not through the treatymaking power”); id. at 100 (observing that historically “[g]eneral acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them”) (emphasis added).[11] What made tribal newborns “the anomalous case,” Wong Kim Ark, 169 U.S. at 683, then, was not that Congress couldn’t regulate them, but that it had done so only rarely: such tribal members might have been “subject in some respect or degree to the jurisdiction of the United States,” but they were not “completely subject to their political jurisdiction” at their “time of birth,” Elk, 112 U.S. at 102 (emphasis added), and therefore were not deemed U.S. citizens by virtue of their birth on U.S. territory.

* * * *

Before turning to the question of whether the persons covered by the Trump Citizenship Order are “subject to [U.S.] jurisdiction” at birth in light of the Court’s understanding of that phrase in Elk and Wong Kim Ark, it’s necessary to highlight one other thing about the three established exceptions to citizenship for native-born persons. As elaborated above, when evaluating whether an individual was born “subject to the jurisdiction [of the United States]” in Elk and Wong Kim Ark, the Court identified the relevant question not as whether the national government had authority to exercise regulatory jurisdiction over that person at the time of their U.S. birth—something it can do in all cases apart from occupation—but instead whether the government had in fact applied its regulatory power to that person “completely” on the date of birth. As to each of the three established excepted categories of persons born in the United States, the answer to that question was: no.

But that’s not the only thing the three established exceptions had in common. To be sure, as Justice Story noted in Inglis, 28 U.S. at 155, each of the exceptions is “founded upon peculiar reasons.” See also Wong Kim Ark, 169 U.S. at 682 (“children of members of the Indian tribes … stand[] in a peculiar relation to the National Government”). Yet they aren’t simply random, idiosyncratic situations in which Congress happens to have chosen, willy-nilly, not to assert its full authority over a subset of minors. (And they certainly aren’t cases in which Congress elected not to fully regulate a class of newborns specifically in order to circumvent Fourteenth Amendment citizenship.) Rather, there’s an important throughline connecting those three exceptions: Each is a function of a particular relationship between the United States and another sovereign—or, in the case of tribes, other quasi-sovereign entities. The “occupied forces” exception applies when a foreign sovereign has displaced the federal government in the United States. The “children of diplomats” exception applies because international law requires states to confer “personal inviolability” that precludes enforcement of the law against certain resident agents and families of fellow sovereign states. And the uniquely American exception for tribal members was a function of the federal government’s treatment of tribes as “distinct, independent political communities” (Worcester v. Georgia (1832)) embedded within U.S. territory.

Although Justice Gray did not write, in so many terms, that such an “inter-sovereign” justification is a necessary condition for an exception under the qualifying phrase of the Citizenship Clause, that characteristic is emphasized throughout the Court’s opinions in Elk and Wong Kim Ark.[12]

* * * *

By contrast with the newborns covered by the three established exceptions, all other persons born in the United States to foreign nationals are—and historically have been—subject to the complete political jurisdiction of the United States (as are their parents in the United States) on the day they are born. That includes both of the categories of persons described in the Trump Citizenship Order. United States law does, of course, apply in its entirety to a person born in the United States to a woman who entered the nation unlawfully (or who violated the law by overstaying her visa or other permission). And the same is true of someone born while their mother is visiting the United States lawfully—just as the law applies to the person’s mother herself while she is in the United States. As the Supreme Court held in Wong Kim Ark, when “private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure,” they are not subject to any “exemption from the jurisdiction of the country in which they are found,” and therefore that jurisdiction remains “absolute,” 169 U.S. at 686, as applied not only to such persons, but also to their newborn children. And the application of such “absolute” regulatory jurisdiction means that the child becomes a citizen at birth.

* * * *

The next post in this series will address DOJ’s affirmative, alternative reading of the Citizenship Clause, which is that a newborn in the U.S. is “subject to [U.S.] jurisdiction” only if he or she is domiciled here.

[1] The disconnect here might be attributable, at least in part, to the fact that most of the plaintiffs invoke the 1865 edition of Noah Webster’s American Dictionary of the English Language, which defined a nation’s “jurisdiction” as the “[p]ower of governing or legislating,” the “power or right of exercising authority,” the “limit within which power may be exercised,” or the “extent of power or authority.” The recent Ninth Circuit decision (see p.26) also cites that and similar dictionary definitions concerning a nation’s authority to regulate. Those definitions of “jurisdiction” are fine as far as they go, but they don’t address what it means for a newborn to be subject to that jurisdiction for purposes of the Citizenship Clause. Fairly read, the plaintiffs (and the Ninth Circuit) are not arguing that a newborn is “subject to” U.S. jurisdiction simply because Congress could in theory obligate that person to comply with U.S. law; instead, they contend that the child is “subject to” U.S. jurisdiction if such federal laws do, in fact, regulate that person.

[2] For what it’s worth, I think the Court’s understanding in Elk and in Wong Kim Ark was correct, at least as a matter of reflecting the framers’ objectives. Many others, however, have written about the original understanding and about pre-Wong Kim Ark interpretations. My focus in this piece and the next piece, by contrast, is on how the Supreme Court’s precedential holdings bear upon DOJ’s arguments.

[3] As noted in the text, Justice Gray wrote in Wong Kim Ark that the framers accomplished their objective by using “the fewest and fittest words.” “Fewest,” perhaps. “Fittest,” however, is a stretch. One can easily imagine “fitter,” i.e., more descriptive, words. For example, if, as the Court held in Wong Kim Ark, the “object” of the phrase was merely to carve out three discrete exceptions (two emanating from the common law and the other to deal with the idiosyncratic relationship of the federal Government to Indian tribes), and nothing more, the framers could have precluded any uncertainty simply by identifying those three exceptions by terms. Likewise, if the pertinent “test” is, as Justice Gray indicated in Wong Kim Ark, whether the newborn child is completely subject to the nation’s political jurisdiction, the framers of the Citizenship Clause surely could have added the adjective “completely” in order to be clear about what is and isn’t covered. As far as I know, there doesn’t appear to be any evidence of why the drafters of the Clause (Senator Jacob Howard, in particular) chose the particular words that appear in the qualifying phrase, rather than opting for a more cabined and precise formulation.

[4] DOJ at times emphasizes the flip side of the duty of allegiance—namely, that a birthright citizen “derive[s] protection” from the United States (Wong Kim Ark, 169 U.S. at 659). It’s true that that legal relationship, unlike allegiance, obviously is of practical significance at the moment of birth: The federal government has the same obligation to protect newborns from harm that it has for others within its territory, and when dealing with newborns it must comply with those legal obligations that apply to all persons—including, for example, the equal protection component of the Due Process Clause of the Fifth Amendment. Yet the Government has such obligations of protection with respect to all minors in the United States, whether they’re citizens or not, and whether or not they fall within one of the historical exceptions to birthright citizenship. (The federal government cannot, for example, refuse to protect children of ambassadors from harm, nor discriminate against them on the basis of race.) Application of the Citizenship Clause therefore cannot turn on whether the United States owes some duty of protection to the person at birth, for that would cover the waterfront and wouldn’t admit of any exceptions at all.

[5] As Marshall explained in The Schooner Exchange (see Wong Kim Ark, 169 U.S. at 684), such immunity also applies to a “foreign sovereign” him- or herself (e.g., a king or queen) when present in the United States.

[6] As to possible waiver of immunity by the sending state, the State Department explains: “Always keep in mind that privileges and immunities are extended from one country to another in order to permit their respective representatives to perform their duties effectively; in a sense, it may be said the sending countries ‘own’ these privileges and immunities. Therefore, while the individual enjoying such immunities may not waive them, the sending states can, and do. Police authorities should never address the alleged commission of a crime by a person enjoying full criminal immunity with the belief that there is no possibility that a prosecution could result. The U.S. Department of State requests waivers of immunity in every case where the prosecutor advises that, but for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States and the U.S. Department of State will request that a warrant be issued and appropriate entries to the National Crime Information Center (NCIC) database be made by the responsible jurisdiction.”

[7] Section 25 provided: “[I]f any writ or process shall at any time hereafter be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, construction and purposes whatsoever.”

[8] See 22 U.S.C. § 254d (providing that “[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations … shall be dismissed”); Vienna Convention on Diplomatic Relations arts. 31(1) (“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State”), 32(1) (providing that the sending state can waive such immunity).

[9] See Vienna Convention art. 37(1) (extending that inviolability to “members of the family of a diplomatic agent forming part of his household”). Section 25 of the 1790 Act referred to the “domestic[s]” of the ambassador or minister. The United States defines members of the household to include spouses, children until the age of 21 (until the age of 23 if they are full-time students at an institution of higher learning), and such other persons expressly agreed to by the U.S. Department of State in extraordinary circumstances.

[10] Jim Jordan and 17 other members of the House Judiciary Committee, appearing as amici in some of the cases, argue that this sort of “partial” immunity can’t be the actual explanation for the “children of ministers” exception because “[i]f qualified, partial, or contingent immunity were sufficient to render diplomatic officials’ children not subject to the jurisdiction of the United States, then the children of domestic officials who receive such immunity—e.g., judges and prosecutors—would likewise not be subject to the jurisdiction of the United States and thus not citizens under the Fourteenth Amendment. That is wrong, of course.” Corrected Brief of Members of Congress as Amici Curiae in Support of Appellants and Reversal in O. Doe v. Trump at 30-31. Amici’s attempted analogy to judicial and prosecutorial immunity is misplaced. For one thing, foreign ministers, unlike judges and prosecutors, have “inviolability” from prosecution as to unlawful conduct undertaken in their personal capacity—it’s not merely an immunity for certain official-capacity acts. More importantly for present purposes, judges’ and prosecutors’ children don’t have any immunity at all, in contrast to the children of foreign ministers, who do. The relevant inquiry under Elk and Wong Kim Ark is whether the federal government exercised its complete regulatory authority over the newborn herself, rather than over the parents, even if the child’s immunity might be derivative of the parents’.

[11] The authorities the Elk Court cited for that proposition included United States v. Rogers, 45 U.S. 567 (1846), in which the Court wrote in dicta (id. at 572) that “it [is] too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to [the United States’] authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offen[s]e committed there, no matter whether the offender be a white man or an Indian”; as well as Crow Dog’s Case, 109 U.S. 556, decided less than one year before Elk, in which the Court appeared to assume (id. at 572) that Congress had authority to deviate from its “general policy” and to prohibit crimes by Indians against other Indians, at least as long as it provided a “clear expression” of an intent to do so.

Although the 1866 Senate debates are hardly clear on this point, it’s possible that some congressional proponents of the Citizenship Clause might have believed that Congress lacked any constitutional authority to regulate members of tribes—a view suggested, as well, by a sentence in an 1870 Senate Report, see S. Rep. No. 41-268, at 9 (“an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void”). To the extent anyone in Congress held that view, however, it would have been inconsistent with the Supreme Court dicta in Rogers. And just a few months after the Senate Report, the Court adopted the Rogers dicta as a holding, going so far as to say that the propositions in Rogers about congressional authority over Indians were “so well settled in our jurisprudence that it would be a waste of time to discuss them.” The Cherokee Tobacco, 78 U.S. 616, 619 (1871); see also id. at 622 (Bradley, J., dissenting) (“the United States has not relinquished its power to make such regulations as it may deem necessary in relation to [Indian] territory, and … Congress has occasionally passed laws affecting it”). Congress itself likewise rejected any constitutional disability over Indians in the 1871 statute flagged in Elk, 112 U.S. at 107. Congressional enactments both before and, especially, after enactment of the Fourteenth Amendment also bely the idea that Congress can’t regulate the conduct of tribal Indians. See, e.g., United States v. Kagama (1886) (upholding Congress’ authority to enact an 1885 statute prohibiting Indians from committing violent felonies on Indian reservations); see also Maggie Blackhawk, Foreword: The Constitution of American Colonialism, 137 Harv. L. Rev. 1, 107 (2023) (noting that the process of Congress and the Executive regulating Native nations and their polities directly through domestic law “began much earlier” than 1871 “and progressed more informally over time”). Today, there’s little dispute within the Court that Congress has a “muscular” power to regulate tribal members. Haaland v. Brackeen, 599 U.S. 255, 273 (2023) (citing numerous cases); see also, e.g., United States v. Wheeler, 435 U.S. 313, 323 (1978) (noting that the “general government” “alone can enforce its laws on all the tribes”); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“Indian tribes are, of course, no longer ‘possessed of the full attributes of sovereignty.’ Kagama. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.”). Justice Neil Gorsuch is a possible exception. Concurring in Brackeen, he wrote that the proposition in Santa Clara Pueblo that Congress has “plenary authority” to “limit, modify, or eliminate the powers of local self-government which the [T]ribes otherwise possess” is “an ‘inconceivable’ suggestion for anyone who takes the Constitution’s original meaning seriously.” 599 U.S. at 328 (Gorsuch, J., concurring). No other Justice expressed such doubts, however.

More to the point for present purposes, and as explained in the text, the Court in Elk didn’t rely upon the notion that Congress lacked constitutional authority; rather, it held that newborn members of tribes were not birthright citizens because, inter alia, Congress had chosen (in light of the unique relationship between the U.S. and recognized tribes) not to subject them to federal jurisdiction “completely,” 112 U.S. at 102. Nor did the Court in Wong Kim Ark rely upon any purported want of congressional power in describing the three established exceptions to birthright citizenship.

[12] In Wong Kim Ark, Justice Gray discussed a fourth situation in which states historically refrained from exercising jurisdiction over persons in their territory, which also involved a particular relationship between sovereigns—namely, when public armed ships of a friendly nation are docked in a domestic port. Gray quoted at length from Chief Justice Marshall’s discussion of this issue in The Schooner Exchange (1812), 169 U.S. at 684-85:

[A] public armed ship, in the service of a foreign sovereign, with whom the Government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.

On page 693 of Wong Kim Ark, Justice Gray even went so far as to suggest that children “born on foreign public ships” in U.S. ports would therefore be subject to a fourth exception to the general rule of citizenship for those born in U.S. territory. Accord DOJ Brief for Appellants in New Hampshire Indonesian Community Support at 11 (characterizing the “birth on ships in port” hypothetical as a category of persons “who, despite birth in the United States, are not constitutionally entitled to citizenship because they are not ‘subject to the jurisdiction’ of the United States”). Justice Gray did not, however, cite any actual common law cases involving such a question, presumably because persons have rarely, if ever, been born on military ships docked in foreign ports. Because this “fourth” exception is likely to be a null set, I haven’t included it in my textual discussion of the three established exceptions.

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

The post Taking Stock of the Birthright Citizenship Cases, Part II: Making Sense of the Three Established Exceptions appeared first on Just Security.

• On July 23, French President Emmanuel Macron announced that France would formally recognize Palestine at the United Nations General Assembly in September.
• Six days later, on July 29, British Prime Minister Keir Starmer announced that the UK will also recognize Palestine at the September UN General Assembly meeting “unless the Israeli government takes substantive steps to end the appalling situation in Gaza, agrees to a ceasefire and commit to a long-term, sustainable peace, reviving the prospect of a Two State Solution. And this includes allowing the UN to restart the supply of aid, and making clear there will be no annexations in the West Bank.”
• The next day, July 30, Canadian Prime Minister Mark Carney announced that Canada would recognize Palestine at the same September UN meeting, but only if the Palestinian Authority commits “to much-needed reforms, including the commitments by Palestinian Authority President Abbas to fundamentally reform its governance, to hold general elections in 2026 in which Hamas can play no part, and to demilitarize the Palestinian state.”
• And on July 31, Portuguese Prime Minister Luis Montenegro announced that Portugal “is considering recognition of the Palestinian state, as part of a procedure that could be concluded during the high-level week of the 80th United Nations General Assembly, to be held in New York in September.”

On July 30, 40 British parliamentarians and lawyers addressed a public letter to UK Attorney-General Richard Hermer, asking him to advise Prime Minister Starmer that UK recognition of Palestine “would be contrary to international law.”

The next day, July 31, Professor Marko Milanovic published a post on EJIL Talk! in which he argued that the parliamentarians/lawyers letter is mistaken insofar as it suggests that UK recognition of Palestine would violate international law. That, wrote Milanovic, “is plainly incorrect”:  “such recognition would be perfectly lawful.”

Also on July 31, Professor Malcolm Shaw, who serves as counsel for Israel in the proceedings brought by South Africa before the International Court of Justice, issued an “opinion,” which Lord Mendelsohn had requested, on whether the UK should recognize Palestine as a state.  Shaw concluded that there are compelling policy reasons for the UK not to recognize Palestine at this time and also that such recognition would be “inconsistent with international law.”

This Wednesday, August 6, one of the signatories to the July 30 letter, Guglielmo Verdirame—a barrister, part-time professor, and member of House of Lords—published a response to Professor Milanovic, defending the July 30 letter. Professor Milanovic (and others) in turn replied to Lord Verdirame in the comments to his post.

If you’re interested in the issues surrounding states’ possible recognition of Palestine, I highly recommend reading the July 30 letter, the Milanovic and Verdirame posts, and the Milanovic response in the Verdirame comments, all of which are quite short. The Shaw opinion is longer, but it, too, is worth reading.

My sense, though it’s based largely on anecdotal evidence, is that there’s not much support in the British legal community, nor in the UK government, for the positions expressed in the July 30 letter and the Shaw opinion. Perhaps, therefore, there isn’t much of an active debate within the UK itself. Nevertheless, I thought it might be useful to offer Just Security readers a few brief reactions to the July 30 letter, the Shaw opinion, and the Milanovic/Verdirame colloquy, in order to clarify and elaborate upon the legal questions raised in the recent discussions in the UK. I don’t have a considered view on whether, as matter of policy, the UK or other states should recognize Palestine now and, if so, under what conditions. These reflections therefore are limited to the legal issues raised in the recent UK debate.

* * * *

1. What’s at stake? The principal legal effect of a state’s recognition of another state is that under the domestic law of the recognizing state, the recognized state can become entitled to certain statuses, privileges and immunities. Of course, recognition can also have significant geopolitical effects, but those generally aren’t legal in nature. Even so—and perhaps of greatest significance here—although the dominant view is that recognition, even by many states, does not conclusively establish statehood of the recognized entity as a matter of international law, recognition by an overwhelming number of states “can resolve uncertainties as to status and allow for new situations to be regularized,” and “where recognition is general, it may be practically conclusive.” James Crawford, The Creation of States in International Law 27 (2d ed. 2006) (emphasis added).

2. Currently, 147 of the 193 member states in the United Nations recognize Palestine as a state. If all four of the recent announcements result in recognition at the UN in September, that number would increase to at least 151. Canada, France and the UK would be the first states in the “Group of Seven”—the intergovernmental political and economic forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States—to recognize Palestine; and recognition by France and Britain would leave the United States as the only permanent member of the UN Security Council that hasn’t done so. As I predicted in a post here back in October, widespread recognition of Palestine, particularly by prominent states such as Canada, France and the UK that had resisted such recognition for many years, would, as a practical matter, make it very unlikely that any international tribunal or organization would conclude that Palestine is not a state.

3. Let’s turn now to the “merits” question of whether Palestine is properly viewed as a state as a matter of international law. As countless volumes of scholarly erudition will attest, there is no hard-and-fast, widely agreed upon test for statehood in international law. It’s a notoriously knotty question.

4. International law entitles the Palestinian people to exercise the right of self-determination. There’s not a great deal of dispute about that proposition. Even Professor Shaw agrees: “It is undeniable that the Palestinians have the right to self-determination.” (¶ 50). The right of self-determination alone, however, doesn’t establish statehood. As James Crawford wrote in his landmark treatise (p.446), “it misrepresents the reality of the situation to claim that one party already has that for which it is striving.” This point, too, is relatively uncontroverted.

5. The current debate in the UK has devoted a good deal of attention to Article 1 of the Montevideo Convention on the Rights and Duties of States, which provides that “[t]he state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states” (emphasis added).

6. The primary point asserted by the attorneys and parliamentarians in their July 30 letter to the UK Attorney-General is that Palestine allegedly does not satisfy at least two of the four Montevideo qualifications: According to the letter, it doesn’t have a defined territory or a “functioning single government.” The letter is probably right about at least the “government” qualification, as I wrote here last October (see note 6):

The Oslo Accords established the Palestinian Authority as the lawful government in Gaza, and in January 2015, when Palestine submitted its instrument of accession to the Rome Statute, Gaza was nominally subject to control by a Palestinian Unity Government that had been formed in June 2014 pursuant to the April 2014 Fatah-Hamas Reconciliation Agreement. That Unity Government dissolved shortly thereafter, however (on June 17, 2015), when President Abbas acknowledged that it was unable to operate in the Gaza Strip. Accordingly, the Palestinian Authority has had no practical ability to govern in Gaza, notwithstanding the Oslo Agreements, since Hamas forcefully took control of the Gaza Strip in 2007.

(Whether Palestine satisfies the first Montevideo criterion is a closer question. As Professor Shaw writes, “there is no rule in international law necessitating fully defined and delimited land boundaries. A State may be recognised as a legal person even though it is involved in a dispute with its neighbours as to the precise demarcation of its frontiers, so long as there is a consistent band of territory which is undeniably controlled by the government of the alleged State.” (¶ 27))

7. The July 30 letter further asserts that because Palestine (arguably) doesn’t satisfy all four Montevideo “qualifications,” it would be “contrary to international law” for the UK to recognize Palestine as a state. The basis for this conclusion is the writers’ assertion that the Montevideo qualifications are “the international law criteria for recognition of a state.”

That latter assumption, however, is wrong. The four Montevideo “qualifications” do not establish an exclusive test for statehood under international law—as the use of “should” in Article 1 of the Convention itself indicates, they’re not necessary conditions, and they might not be sufficient, either. (For what it’s worth, Professor Shaw appears to agree. Although he asserts somewhat vaguely (and without citing any authority) that “the four Montevideo criteria constitute the presumptive paradigm,” he acknowledges that they “are not necessarily exhaustive in all circumstances and … the balance between them may vary in particular instances.” (¶ 20))

More importantly, it’s widely (although perhaps not universally) agreed that states have fairly often (and permissibly) recognized the statehood of other entities in circumstances where one or more of the Montevideo qualifications have not been satisfied.

8. Professor Milanovic believes the letter writers have made an even more indefensible error by suggesting that if the UK were to recognize Palestine, that act of recognition itself would actually violate international law.

The July 30 letter does not quite ever say that—not in so many words, anyway. Instead, it states that recognition would be “contrary to international law.” I suppose that phrasing could be intended merely to mean that the British decision would be mistaken as a matter of international law, rather than that it would itself breach the law. Thus, for example, in his response to Milanovic, Lord Verdirame does not expressly assert that recognition would violate international law; instead, he merely insists that there would be no “justification” for a UK recognition unless international law has changed, and suggests that such recognition would not be “in line with” international law.

I think it’s fairly obvious that the letter writers, including Lord Verdirame, are engaged in a bit of deliberate ambiguity here about the nature of their legal claim. Whatever their actual intent might be, however, Professor Milanovic is surely right that describing recognition as “contrary to international law” foreseeably “created the impression … that the UK would be acting illegally if it recognized Palestine,” which is indeed, according to Milanovic, how the British media have characterized the letter. That’s not correct as a matter of international law (Milanovic’s main point), and the letter writers, Lord Verdirame among them, could easily clarify that they didn’t intend to make such a claim if they so desired. Apparently, however, they welcome the fact that many or most observers have understood the letter to be making the stronger, incorrect claim that recognition would be illegal.

Professor Shaw, for his part, writes that UK recognition of a State of Palestine “would in current circumstances be premature and inconsistent with international law.” (¶ 51) That phrasing, too, is ambiguous; some might read it as a statement that the UK would be violating international law if it recognized Palestine. Nothing else in Shaw’s detailed opinion, however, suggests that international law prohibits such recognition.

9. Lord Verdirame also argues that UK recognition would be inconsistent with established British policy and practice (as opposed to international law). “In 1986,” he writes, “the Government confirmed to Parliament that Britain applied the four classic criteria of statehood to matters of state recognition.” The 1986 colloquy in Parliament to which Lord Verdirame links, however, suggests something very different. There, then-Secretary of State Lynda Chalker was asked “what are the criteria which Her Majesty’s Government will require to be satisfied for Her Majesty’s Government to recognise Bophuthatswana.” Secretary Chalker responded: “The normal criteria which the Government apply for recognition of a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions, may also be relevant.” (Emphasis added.) As far as I know, the British Government has continued to articulate this same formulation since that time. See, e.g., 81 British Year Book of International Law 503 (2010) (stating the same view in 2009 regarding how the UK Government would determine whether Somaliland was an independent state). Assuming that’s so, long-established UK policy thus has been to begin with the Montevideo criteria “normally,” but also to take into account “other factors,” as well, if and when they’re relevant. That practice is, to say the least, in considerable tension with the position of the July 30 letter that the four Montevideo criteria are the be-all and end-all.

10. Professor Milanovic and Lord Verdirame discuss a well-known passage in James Crawford’s esteemed book. Although Crawford did not think that, as of 2006, Palestine should be recognized as a state, he added this provocative idea (pp. 447-48):

There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.

Professor Milanovic suggests it would, at a minimum, be reasonable for the UK to conclude, in accord with Crawford’s suggestion, that that “point” in time has now come because Israel, “through its continued illegal occupation of Palestinian territories,” “is preventing Palestine from fulfilling the Montevideo effectiveness criteria.” Milanovic is certainly right that Israel has significantly contributed to the inability of the Palestinian people to satisfy the Montevideo criteria, not least by virtue of its longstanding, blatantly unlawful practice of allowing the expansion of settlements in the West Bank. Israel is not wholly responsible, however. As I note in Point 6, above, the failure to satisfy all the Montevideo criteria is also a function of the fact that the Palestinian Authority has had no practical ability to govern in Gaza, notwithstanding the Oslo Agreements, since Hamas forcefully took control of the Gaza Strip in 2007.

There is no “right” answer to whether this situation of mixed, or joint, responsibility is sufficient to establish the degree or type of Israel-generated “serious prejudice” to the Palestinian people that might warrant state recognition of Palestine pursuant to Crawford’s (tentative) suggestion—nor is there an established consensus that states should heed Crawford’s suggestion in making recognition decisions. Reasonable minds can certainly differ on these questions.

11. In sum, international law does not prohibit the UK from recognizing Palestine as a state—as almost 150 other states have done. But neither does it require such recognition. As Professor Shaw notes, “[r]ecognition by one State of another is a political act which will occur within the context of a particular political situation. There is no obligation to recognise the statehood of another entity.” Therefore, at least as far as international law is concerned, the UK Government is free to make either choice. And so, too, are the governments of Canada, France, and Portugal. If most or all of those four nations do recognize Palestine, that might be something of a watershed development, regardless of what the United States does. As I explained above in Points 1 and 2, where recognition is general it may become conclusive as a practical matter. And recognition of Palestine by states such as Canada, France, and the UK, all of which have resisted such recognition for many years, would, as a practical matter, make it very unlikely that any international tribunal or organization would conclude that Palestine is not a state.

The post Reactions to the British Debate About the Legality of Recognizing Palestinian Statehood appeared first on Just Security.

Moreover, there have been several important developments in the past couple of weeks, including these:

• Last Wednesday, July 23, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court to issue a decision on the merits: It held that enforcement of Trump’s Executive Order No. 14160, “Protecting the Meaning and Value of American Citizenship” (the “Citizenship Order”), would violate both the Fourteenth Amendment and 8 U.S.C. § 1401. The court of appeals also held that the four plaintiff States in a challenge in the Western District of Washington had standing to sue (over a dissent from Judge Patrick Bumatay), and that the district court’s “universal” injunction is appropriate because it is necessary to guarantee that the plaintiff States obtain complete relief from injuries they would suffer if the defendants implemented the Citizenship Order.

• Two days later, District Court Judge Leo Sorokin in the District of Massachusetts similarly held that it would be inappropriate to trim back his earlier “universal” preliminary injunction because it, too, is necessary to guarantee that the plaintiff States (and two localities) in the case before him won’t suffer injuries if and when the Government implements the Citizenship Order.

• In a case in the federal district court in New Hampshire (Barbara v. Trump), Judge Joseph Laplante certified a plaintiff class of all children born in the United States after Feb. 19, 2025 whose parents are described in the Citizenship Order, and he issued a preliminary injunction against implementation of the Order as to such children. Judge Laplante stayed that order for seven days to give the Government an opportunity to appeal, but for some reason the Government did not appeal, and therefore the injunction took effect on July 17.

• In the CASA case itself in Maryland, the plaintiffs asked Judge Deborah Boardman to certify a similar class of children born in the United States after Feb. 19, 2025 and to issue a similar classwide preliminary injunction. On July 16, Judge Boardman issued an “indicative ruling” that if and when the court of appeals remanded the case back to her for the limited purpose of adjudicating the plaintiffs’ class-related motions, she will grant the requested classwide preliminary injunction. On Tuesday, the court of appeals dismissed the pending appeal in CASA and remanded the case to Judge Boardman so that she can (i) ensure that her previous injunction complies with the Supreme Court’s decision in CASA; and (ii) rule on the plaintiffs’ motion for class-wide relief, “so that appellate review of the merits of that relief can come sooner rather than later.”

• In the past few days, at least half a dozen executive departments and department components have issued one form or another of “guidance” about how they’ll implement the Trump Citizenship Order:
  • The Department of State (for purposes of passport issuance)
  • The Department of Health & Human Services (for purposes of providing “Federal public benefits” defined by Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA))
  • HHS’ Center for Medicare and Medicaid Services (CMS) (also for “federal public benefits” purposes, including Medicaid and the Children’s Health Insurance Program (CHIP))
  • The Department of Agriculture (also for purposes of assessing eligibility for “federal public benefits”)
  • The Social Security Administration (for purposes of issuing Social Security numbers)
  • The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (to establish the meaning of “unlawfully present” for purposes of the Trump Citizenship Order; to establish the meaning of “presence” that is “lawful but temporary” in the Order and which immigration statuses or other types of lawful presence “may fall into that category”; and to establish whether certain children born in the United States to a person whose presence is “lawful but temporary” would have lawful immigration status for purposes of the Order)

In light of these developments and the forthcoming oral arguments on the merits of the Citizenship Order in the U.S. Court of Appeals for the First Circuit this Friday, I thought it would be useful to pull together an article that comprehensively addresses an array of matters related to CASA and the pending litigation about the Trump executive order on birthright citizenship.

Part I describes the various actions the Solicitor General (SG) asked the Court to take on the “shadow docket” in CASA.

Part II identifies the aspects of the SG’s application that the Court either rejected or chose not to resolve. Among other things, Part II addresses two questions currently being litigated in the lower courts: (i) whether some of the plaintiffs in the cases lack standing and (ii) whether the courts can and should issue relief to nonparties (including even “universal” injunctions) in order to secure “complete relief” to the plaintiffs themselves.

In Part III, I offer several reasons why the Court’s (tentative) holding in CASA about the absence of broad statutory authorization for federal courts to issue universal relief might not have nearly the practical significance that many scholars, judges, Justices, and Executive branch officials have suggested. In so doing, I also discuss the status and prospects of current class actions that plaintiffs have filed in some of the birthright citizenship cases themselves.

Part IV analyzes the merits of Justice Amy Coney Barrett’s opinion on the question of federal courts’ statutorily authorized equitable power to issue injunctions protecting nonparties.

Finally, in Part V, I discuss three things about the Court’s opinion that are much more troubling than its account of that statutory question.

In subsequent pieces, I’ll turn to the merits of the suits and examine several of the most prominent arguments the Department of Justice is offering in defense of the legality of Trump’s Citizenship Order.

I. What the Solicitor General Asked the Court to Do in CASA

Section 1 of the Citizenship Order declares that the privilege of U.S. citizenship under the Citizenship Clause of Fourteenth Amendment and 8 U.S.C. § 1401 does not extend to two categories of persons born in the United States to a father who wasn’t a citizen or lawful permanent resident at the time of the person’s birth: (1) those whose mothers were “unlawfully present” in the United States at the time of birth; and (2) those whose mothers were lawfully in the United States on a temporary basis, such as on a student, work, or tourist visa, on the date of the person’s birth.

For present purposes, it’s important to stress that Trump’s reading of the Citizenship Clause and § 1401 is inconsistent with the unbroken, consensus understanding of birthright citizenship that all three branches of the federal Government have had for the past 127 years. (In an earlier piece, I explained that DOJ’s initial defense of the Citizenship Order in district courts was flatly inconsistent with the Supreme Court’s holding in United States v. Wong Kim Ark (1898) and with well-established DOJ views, and that the litigators had failed even to try to explain why they were disregarding binding Court and DOJ precedent. Subsequently, DOJ has slightly changed the nature of its legal arguments; insists (however unconvincingly) that Wong Kim Ark does not preclude those new arguments; and has acknowledged that its current view about the scope of birthright citizenship deviates from the Executive branch’s longstanding position, which it now insists was mistaken all along.)

Section 3 of Trump’s Citizenship Order requires the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security to “take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent” with Section 1’s gloss on birthplace citizenship, and to ensure “that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with th[e] order,” i.e., with the Trump definition of birthright citizenship. Section 3(b) of the Order directs executive agencies to “issue public guidance within 30 days … regarding this order’s implementation with respect to their operations and activities.” Citizenship Order § 3(b); see App., infra, 17a; id. at 58a-59a; id. at 107a.

Section 2 of the Order includes a more specific directive: It forbids any federal department or agency from issuing documents recognizing U.S. citizenship, or accepting documents issued by State, local, or other governments or authorities “purporting to recognize U.S. citizenship,” to persons described in the two categories of Section 1 of the Citizenship Order. That particular prohibition on issuing or accepting documents—unlike the general directives in Section 3—by its terms applies only to persons born after Feb. 19, 2025.

Many different plaintiffs—individuals, organizations and States—have sued to enjoin federal officials from implementing the Citizenship Order. Three U.S. district courts, in the Districts of Massachusetts, Maryland and the Western District of Washington, not only concluded that the Citizenship Order is likely unlawful, but also entered “universal” preliminary injunctions barring the defendant executive officials from applying the Order to any covered persons, whether or not they are plaintiffs in the three cases.

In each of those three cases, the Government asked the court of appeals to stay the preliminary injunctions as applied to nonparties covered by the Citizenship Order. In the Massachusetts and Washington cases, it also asked the courts of appeals to hold that the State plaintiffs lacked standing to sue—which in the case of the Massachusetts case would mean staying the injunction entirely, since the plaintiffs there are all States (as well as the District of Columbia and San Francisco). And in the Maryland case brought by five individuals and two membership organizations, DOJ asked the court of appeals to limit the injunction to the individual plaintiffs and the eleven members of the organizational respondents who are personally identified in the complaint, primarily because (DOJ argued) an organization lacks standing to sue on behalf of members who are not themselves injured by the Government’s actions.

Each of the three courts of appeals denied the Government’s requests.  The Solicitor General then filed three distinct but virtually identical applications in the Supreme Court, each asking the Court to “partially” stay the scope—not the substance—of the district courts’ so-called “universal” preliminary injunctions.  (The applications were made by then-Acting SG Sarah Harris, before the Senate confirmed John Sauer to be Solicitor General. Sauer was in office by the time reply briefs were filed, however, and I’ll refer to him throughout this article.)

The Solicitor General’s applications were very unusual. He did not ask the Court to review the district courts’ holdings on the legality of the Trump Citizenship Order. Instead, he asked the Court “only” to do four other, more discrete things to limit the scope of the preliminary injunctions: (i) to “stay” the preliminary injunctions to the extent they offer relief to nonparties; (ii) to hold that the State plaintiffs lack standing to sue under the Court’s prudential “third-party standing” doctrine—a holding that would thereby limit the parties protected by the Washington injunction and require dismissal of one of the Massachusetts cases entirely; (iii) to limit the injunction in the Maryland case to cover only the five individual respondents and the eleven members of the organizational respondents identified in the complaint—but not any other, unidentified members of the plaintiff organizations; and (iv) to stay the provisions of at least two of the district court injunctions that might have been read to preclude executive agencies from developing and issuing public guidance about the their plans to implement the Citizenship Order.

II. What Did the Court Not Resolve in CASA?

The Court did not do several things the Solicitor General had requested.

1.

In footnote 2 of its opinion, the Court simply declined to address the SG’s arguments that the State plaintiffs lack “third-party” standing and that the organizational plaintiffs lack Article III standing to sue on behalf of unidentified members. It’s not altogether certain what that unexplained refusal means for purposes of the Government’s stay application. What’s clear, however, is that the Court did not stay or amend the preliminary injunctions on the basis of any alleged standing deficiencies by the State and associational plaintiffs. It’s therefore fair to say that the Court effectively denied those aspects of the Solicitor General’s application.

The questions of State and associational standing remain open for consideration by the lower courts, however. Therefore, in the next two sections I’ll describe very briefly what the Government’s standing arguments are and why the Supreme Court probably won’t deny standing to any of the plaintiffs in the birthright citizenship cases themselves.

2.

DOJ is making two different arguments about why the plaintiff States in the Massachusetts and Washington cases don’t have standing—one constitutional, the other “prudential.” (The SG raised only the latter, “prudential standing” argument in the Supreme Court, but DOJ is relying on both arguments in the lower courts.)

DOJ argues first that the States don’t satisfy the constitutional conditions for standing because any harms they will suffer, if and when the Executive branch begins to implement the Citizenship Order, are too speculative and contingent upon the ways in which the agencies decide to implement the Order, and because those harms are allegedly “self-inflicted” due to the fact that the States have voluntarily chosen to provide medical benefits to undocumented foreign nationals (which is the principal context in which the States allege they will suffer their injuries). This question of Article III standing, which wasn’t before the Supreme Court in CASA, is the issue that divided the judges on the Ninth Circuit panel last week: The majority (Judges Ronald Gould and Michael Daly Hawkins) held that the plaintiff States are virtually certain to sustain (mostly economic) injuries if the Order is implemented (see pp. 18-19), and that the harms would not be self-inflicted. Judge Bumatay disagreed (see pp. 63-76). If you’re interested in these issues, check out those opinions. I won’t elaborate further on them here because I doubt the Supreme Court will have occasion to resolve them. There will almost certainly be other plaintiffs with uncontested standing when the cases again reach the Court, and it’s likely the Court will simply decide the merits of those plaintiffs’ claims without having to grapple with the thorny issues of States’ Article III standing.[1]

DOJ’s more interesting standing argument in the citizenship cases invokes the Court’s prudential (i.e., not constitutional) “third-party standing” doctrine that even when a plaintiff has alleged injury sufficient to satisfy Article III’s “case or controversy” requirement, it “generally must assert [its] own legal rights and interests, and cannot rest [its] claim to relief on the legal rights or interests of third parties” (Warth v. Seldin (1975)). (The Court has recognized exceptions to this prudential rule in cases where the defendant applies its policy against the “third party” plaintiff itself or where the plaintiff has a close relationship with the person who possesses the right and there’s a “hindrance to the possessor’s ability to protect his own interests” (Kowalski v. Tesmer (2004)).) According to DOJ, this prudential doctrine precludes the States’ standing in the Massachusetts and Washington cases even if the States do meet the Article III injury thresholds, because the rights and interests at stake are those of the putative individual citizens against whom the Government would apply the Citizenship Order, and those individuals can protect their own interests in court.

In his concurring opinion in CASA, joined by Justice Thomas, Justice Alito indicated support for this argument: “So long as third-party standing doctrine remains good law,” he wrote, “federal courts should take care to apply these limitations conscientiously, including against state plaintiffs” (citing a recent article by Curt Bradley and Ernie Young arguing against third-party standing in cases of such “collateral” injuries).

If the Supreme Court has occasion to address the issue, however, there’s reason to think a majority of the Justices wouldn’t apply the Warth/Kowalski rule here. For one thing, no Justice even mentioned the issue in Diamond Alternative Energy v. EPA, a case decided a few days before CASA in which the Court affirmed a “third” party’s standing because it would suffer injury from the state’s application of a rule to another private party elsewhere in a supply chain. (California didn’t raise the third-party standing argument directly in Diamond Alternative, so it was waived—but the failure of any party or Justice even to flag it might be telling.)

More importantly (perhaps), in the 2014 Lexmark case, the Court suggested that such prudential standing limits are in “tension with … the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging”; and although the Court in Lexmark reserved the question of whether the third-party doctrine is such a prudential rule, a plurality of the Court in June Medical (2020) affirmed Kowalski’s assumption that the doctrine is, in fact, prudential, and only Justice Thomas took issue with that view. If the Court were to adhere to Justice Scalia’s view in Lexmark that the Court can’t deny plaintiffs their day in Court on “prudential” grounds, then it should turn aside the Government’s third-party standing argument.[2]

3.

As for the associational plaintiffs in the Maryland case—CASA, Inc. and the Asylum Seeker Advocacy Project (ASAP)—the Solicitor General argued in the Supreme Court that they have Article III standing only to represent those of their members who have identified themselves as having been injured by the Citizenship Order. Citing Justice Thomas’ sole concurrence in FDA v. Alliance for Hippocratic Medicine (2024), the SG contended that the Court’s established associational standing doctrine goes too far by permitting an association to seek relief for its entire membership on the basis of injuries to one or more of its members “even if the association has tens of millions of other, non-injured members.”

It is uncertain whether this issue will remain relevant in the CASA case itself on remand.  If the courts there grant the individual plaintiffs’ motion for classwide relief (something I discuss in Point 10, below), there might not be much of a need for CASA and ASAP to continue to seek a separate injunction to protect their members.  The issue remains a live one, however, in the New Hampshire case that will be argued in the First Circuit on Friday, which involves a preliminary injunction protecting all the members of the New Hampshire Indonesian Community Support association.

If the Supreme Court ever reaches the issue in one or more of these cases—which is unlikely—the Government’s argument probably won’t get any traction, for two reasons.

First, as Justice Thomas acknowledged in his Alliance for Hippocratic Medicine concurrence, the precedent is clear: “the Court consistently applies” associational standing principles to grant relief to all of an organization’s members if any one of them would have standing. Therefore, the Court would have to overturn numerous precedents  to abandon the doctrine—an unlikely result.

Second, there’s no practical reason to overturn those precedents—certainly not in the birthright citizenship cases, anyway. If many or most of an association’s members aren’t injured by the Citizenship Order—for example, because their parents were U.S. citizens or legal permanent residents (in which case the Order doesn’t deny them citizenship) or because they weren’t born in the United States (in which case they wouldn’t be birthright citizens on any reading of the Fourteenth Amendment)—then a judgment in their favor won’t benefit them in any way or harm the Government in any way. Thus, nothing of substance turns on the breadth of an association’s standing, i.e., on how many of its members are nominally covered by an injunction and whether anything in the Constitution requires them to identify themselves before the court issues an injunction.

4.

In his CASA applications, the Solicitor General asked the Court to hold that Article III of the Constitution generally forbids federal courts from issuing “universal” injunctions that provide relief to nonparties—even if Congress has authorized such relief. A constitutional holding to that effect would have been very significant. Among other things, it presumably would mean that the Administrative Procedure Act (APA) provision empowering reviewing courts to “hold unlawful and set aside agency action” could not be construed, as it long has been, to authorize courts to vacate unlawful agency rules. It also would have called into question various other statutes, such as the Hobbs Act and the Clean Water Act, in which Congress has given courts the power to categorically enjoin or vacate agency rules.

In footnote 4 of CASA, the Court declined the SG’s request for a constitutional ruling: “Our decision rests solely on the statutory authority that federal courts possess under the Judiciary Act of 1789,” wrote Justice Barrett. “We express no view on the Government’s argument that Article III forecloses universal relief.” And in footnote 10, the Court added that “[n]othing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.”

I think it is fairly safe to assume there aren’t five votes on the Court to hold that Congress can’t authorize courts to issue relief to nonparties. Indeed, as I note in Point 7 below, the Court itself issued such a universal injunction in the final sentence of its CASA opinion, something it couldn’t have done if Article III barred such relief. Nor, I suspect, would a majority of Justices read the APA not to authorize vacatur—a holding that would, in Chief Justice John Roberts’ words, “be fairly radical and inconsistent with” what D.C. Circuit judges do in APA cases “five times before breakfast.” See also Justice Brett Kavanaugh’s CASA concurrence (p.2): “[I]n cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule.”

5.

The Court granted the Solicitor General’s stay application in one minor, discrete respect: To the extent any of the three preliminary injunctions under review could be read to preclude agencies from developing and issuing public guidance about their plans to implement the Citizenship Order, the Court lifted that restriction. Accordingly, after the decision in CASA, Section 3 of the Order required the agencies to promulgate such guidance by July 27. Several agencies have now done so. (See the documents linked at the top of this piece.)

Apart from that, did the Court grant any other aspect of the stay application?

It’s widely assumed that the Court stayed the effect of the three preliminary injunctions as applied to nonparties. That’s not quite right, however.

To be sure, in the final paragraph of her opinion for the Court, Justice Barrett wrote that “[t]he Government’s applications to partially stay the preliminary injunctions are granted.” She immediately added an important qualifier, however: “but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.” In other words, the Court’s response to the SG’s principal application for a stay was: “It depends.”

What many observers of these cases didn’t appreciate was that the plaintiffs didn’t request universal injunctions primarily in order to provide relief to nonparties, as such; instead, they requested injunctions of that breadth in order to secure “complete relief” to the parties themselves. That was the overwhelming emphasis of the plaintiffs’ briefs in the Supreme Court, even if it wasn’t the question that most interested the Justices.

Significantly, the Court agreed with the respondents on the “complete relief” issue. It held that Congress has authorized federal courts to issue not only (a) certain forms of relief that incidentally benefit nonparties—Justice Barrett invoked the “archetypal” case (p.16) in which a plaintiff sues a neighbor for blasting loud music at all hours of the night and the court orders the defendant to turn it down—but also (b) an injunction that expressly directs a defendant to treat some or all nonparties in a certain way—such as “a blanket ban on the enforcement of the Executive Order” (p.18)—where that’s necessary in order to “offer complete relief to the plaintiffs before the court” (p.17). That’s the very theory of “universal” relief that the plaintiffs have emphasized in these very cases.

The Court itself did not decide whether a need for “complete relief” justifies the universal injunctions in these cases; instead, it remanded that inquiry back to the lower courts “to determine whether a narrower injunction is appropriate” (p.19). The Court directed those courts (p.26) to “move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with” the Court’s understanding of federal courts’ remedial authorities (including the courts’ power to issue universal injunctions if necessary to secure plaintiffs’ complete relief) “and otherwise comply with principles of equity” (p.26).

Accordingly, the Court did not grant the Solicitor General’s applications for partial stays of the preliminary injunctions—or, to be more precise, it purported to “grant” those applications contingent upon further findings by the lower courts.

6.

On pages 17-19 of her opinion, Justice Barrett discussed in detail the States’ arguments about why a universal injunction is necessary to ensure they wouldn’t be harmed by implementation of the Citizenship Order, but the Court declined to opine on whether those arguments pass muster.

In its opinion last week in the Washington case, the Ninth Circuit held (see pp. 48-49) that the district court did not abuse its discretion in issuing a universal injunction because such a remedy is necessary in order to provide complete relief to the plaintiff States there. (The appellees in the Circuit also included, in addition to the State plaintiffs, three individuals whose children would be covered by the Citizenship Order. The court of appeals purported to “dismiss” their claims (see p.21) because their children were recently included in a class certified in the District of New Hampshire. That dismissal was wrong for reasons I discuss in a footnote,[3] but the absence of the individual plaintiffs in the Washington case shouldn’t make much of a practical difference going forward.) Likewise, in the Massachusetts case, District Court Judge Leo Sorokin held on Friday that the 18 plaintiff States (and two localities) there met their burden of showing—on an elaborate factual record that the Government did not contest—that no narrower form of relief “would feasibly and adequately protect the plaintiffs from the injuries they have shown they are likely to suffer if the unlawful policy announced in the Executive Order takes effect during the pendency of this lawsuit.”

As a result of these two decisions last week, there remain in place at least two “universal” injunctions against implementation of the Citizenship Order. Even if the Solicitor General chooses to ask the Supreme Court to review these “complete relief” holdings, I think it’s unlikely the Supreme Court will adjudicate that question because (i) it would require the Court first to decide the State standing questions; (ii) the issue might not be of practical significance because one or more other, classwide injunctions will be in place that cover many or all of the same affected persons; and (iii) the Court will probably hear and resolve the substantive merits of the cases, which would pretermit the need to opine on the “complete relief” question.

Whether the Court left open a “complete relief” argument for a universal injunction on behalf of the associational plaintiffs in the Maryland case is a bit less clear.[4] However, in light of the fact that CASA’s and ASAP’s members will be covered by the classwide relief that Judge Boardman has indicated she will soon issue, and that they’re also protected by universal and classwide injunctions currently in place in other cases, there’s a good chance the courts in CASA won’t need to adjudicate CASA’s and ASAP’s argument that a universal injunction is appropriate in order to ensure their members aren’t injured. For that reason, I’ll relegate my discussion of that question to a footnote.

7.

Therefore, the Supreme Court did not hold that the Government may now implement the Citizenship Order with respect to nonparties.  To the contrary, in the final sentence of its opinion the Court added its own universal injunction, one that applies to all persons covered by the Trump Citizenship Order: “Consistent with the Solicitor General’s representation, § 2 of the Executive Order shall not take effect until 30 days after the date of this opinion.” If the Government were correct that Article III precludes such universal relief, the Court could not have issued that decree. What’s more, and as I discuss below, this SCOTUS injunction is difficult to square with the Court’s understanding about whether Congress has authorized federal courts to issue such relief to nonparties.

III. The Relative Insignificance of CASA’s (Tentative) Holding About Universal Injunctions

Of course, the question that dominated the Court’s opinion in CASA, and that grabbed all the headlines, is whether federal courts have statutory authority to issue “universal” injunctions other than where necessary to provide plaintiffs with complete relief.

8.

The Court declared its view on that question unequivocally early in Justice Barrett’s opinion: “Congress has granted federal courts no such power” (p.5). Technically, however, the Court hasn’t quite held as much. Because of the preliminary posture of the case at the preliminary injunction stage, all the Court decided was that Congress likely hasn’t provided federal courts with any such authority. Justice Barrett flagged the tentative nature of the Court’s conclusion at least three times: “These injunctions—known as ‘universal injunctions’—likely exceed the equitable authority that Congress has granted to federal courts” (pp. 1-2). “The Government is likely to succeed on the merits of its argument regarding the scope of relief” (p.5). “The question before us is whether the Government is likely to suffer irreparable harm from the District Courts’ entry of injunctions that likely exceed the authority conferred by the Judiciary Act. The answer to that question is yes” (p.25).

Justice Barrett’s caveats were especially appropriate in CASA for two reasons. First, the parties barely briefed the question, not only because the Court didn’t order full briefing on the Government’s stay application, but also because the parties emphasized the “Is it necessary for complete relief?” question discussed above. Second, because the Court acknowledged that courts can issue such universal relief to provide the parties with complete relief—and remanded the cases for the lower courts to adjudicate that question—the Court’s analysis of the broader question technically was dicta.

That said, there’s no doubt that six Justices believe that federal courts lack a general statutory power to issue “universal” injunctions (though the Court bracketed the question whether some statutes, such as the APA, might authorize such relief in certain circumstances). According to the Court’s Delphic decision last week in Trump v. Boyle, that conditional conclusion apparently will “squarely control[]” what lower courts should do when they’re considering requests for interim relief, even though it’s “not conclusive as to the merits.” I don’t think it ought to be “squarely controlling” when lower courts are deciding whether to issue ultimate relief against the federal Government, but that’s a formality:  Lower courts surely won’t disregard the Court’s view about the “likely” scope of their equitable authority simply because the Court hasn’t quite closed the door all the way. Therefore, as a practical matter, the tentative, conditional nature of the Court’s statutory holding will only be relevant if and when the Court includes five or more  Justices inclined to abandon it (in which case stare decisis wouldn’t stand as an obstacle).

That’s not happening anytime soon. So as a practical matter, the Court has resolved the question:  Federal courts generally can’t issue universal injunctions other than in order to secure complete relief to the plaintiffs.

How important is that resolution?

One might assume that it’s very significant, given the volume of heated debate about the question in recent years in the federal courts, in the pages of law reviews, and online. The Solicitor General’s Office, in administrations of both parties, has repeatedly implored the Court to declare that a lone district judge lacks the power to singlehandedly halt the operation of a federal program, particularly where that judge’s view might be an outlier. That argument clearly has found favor with several Justices—including Justices Sotomayor and Kagan, both of whom have suggested that district judges shouldn’t issue such “universal” injunctions in at least some cases. (See, for example, Justice Sotomayor’s dissent at p.23: “There may be good reasons not to issue universal injunctions in the typical case, when the merits are open to reasonable disagreement and there is no claim of extraordinary and imminent irreparable harm.”) Several scholars have likewise enthusiastically welcomed the Court’s decision. Nick Bagley, for example, wrote that “[n]ationwide injunctions are equal-opportunity offenders, thwarting Republican and Democratic initiatives alike. Today, it’s Trump’s birthright-citizenship order and USAID spending freezes. Yesterday it was mifepristone, the cancellation of student debt, and a COVID-vaccine mandate. Why should one federal judge—perhaps a very extreme judge, on either side—have the power to dictate government policy for the entire country? Good riddance.” Others condemned it. Mila Sohoni, for example, wrote: “I disagree intensely with the decision, which rests on an amalgam of bad history, fiat, and ipse dixit.” And in her dissenting opinion, Justice Jackson went so far as to warn that the Court’s decision might be “an existential threat to the rule of law.” Several prominent commentators expressed similar alarm.

For reasons I explain in Part IV below, I think that Professor Sohoni’s views on the merits of the question are closer to the mark. That said, I also think the Court’s decision isn’t as momentous as some scholars, Justices, and Executive branch officials have suggested, for a couple of reasons.

9.

First, the practical costs to the federal Government of such universal injunctions aren’t as severe as advertised. Like Sam Bagenstos, I was an Executive Branch attorney with “a front-row seat to myriad abuses” when “judges hand-picked by ideological plaintiffs for their hostility to the administration” issued universal injunctions that stymied administration initiatives right out of the gate with very little justification. Even so, I’m not sure that Sam is correct that such injunctions “created enormous … obstacles to governance”—any more than judicial vacaturs of agency rules under the APA have greatly impeded the federal Government from operating.

As I wrote back in 2018 (in connection with the universal injunction issued in the “Travel Ban” case), the cases where universal injunctions have raised the most controversy are those in which plaintiffs immediately challenge a new, controversial federal government policy. In such cases, it’s reasonable to assume the Supreme Court will adjudicate the legality of the policy in short order, probably within a term or two (or will at a minimum do so for purposes of preliminary relief). And once the Court rules, its decision will as a practical matter have the same effect as a universal injunction: either the Court will declare that the policy is lawful, in which case the Government will be able to implement it universally, or every affected person (not only the plaintiffs themselves) will benefit from a ruling against the Government. (Justice Kavanaugh echoes this point in his concurrence in CASA: “[T]he Court’s disposition of applications for interim relief often will effectively settle, de jure or de facto, the interim legal status of [contested] statutes or executive actions nationwide.”)

A district court’s universal injunction therefore merely establishes a nationwide status quo for the (usually) short interim period before the SCOTUS’s ultimate decision. And if DOJ thinks the Supreme Court is likely to disagree with the district court on the merits, it can expeditiously get the case before the Court and secure a reversal.

10.

On the flip side, denying courts the power to issue such injunctions shouldn’t have much of a practical impact, either—in most cases, anyway. For one thing, as Justice Barrett noted, district courts rarely issued such injunctions until the Obama Administration. This certainly made things more inefficient and costly for plaintiffs when the Government initiated an unlawful policy.  Sam Bray reports, for example, that between 1935 and 1937, courts issued approximately 1600 injunctions against implementation of the processing tax in the Agricultural Adjustment Act. That’s hardly an ideal way to run a railroad, in my book. But it wasn’t an intolerable system, either.

More importantly, the Court’s CASA decision is unlikely to revert us back to that sort of world, in which courts are issuing thousands of identical injunctions. As Justice Kavanaugh and several commentators have emphasized, there are at least three ways in which district courts can effectively provide “universal” relief against patently unlawful government action, even after CASA.

(i)

As discussed above, in many cases a universal injunction may be necessary to fully remedy a plaintiffs’ own injuries, in which case the district court can issue it. The Court in CASA specifically held that courts have the power to do so.

(ii)

Once a federal government policy is instantiated in an agency rule (as Trump’s birthplace citizenship policy is now, in the agency guidance documents), it can be challenged under the APA and a court of appeals can vacate (5 U.S.C. § 706(2)) or stay (5 U.S.C. § 705) that rule if it determines that it’s unlawful.

(iii)

And in many cases, plaintiffs ought to be able to bring a class action that protects all or most of the persons injured by a new Government policy. As Adam Liptak reports, class actions were mentioned at least 35 times in the CASA oral argument, and Justice Kavanaugh signaled that they could provide “a mechanism to do what’s needed here in terms of getting relief to people.” The Supreme Court even recently affirmed, in its A.A.R.P. decision, that district courts can issue a preliminary injunction protecting a “putative” class that hasn’t yet been certified. Notwithstanding CASA, that’s an injunction that expressly protects nonparties … which only goes to show that the Court’s categorical declarations in CASA about the absence of any such remedial power are questionable and difficult to square with the Court’s own practices when it comes to issuing equitable relief.

In the wake of the Court’s decision in CASA, plaintiffs in at least two birthright citizenship cases immediately moved to certify broad classes of plaintiffs and asked the district courts to issue preliminary injunctions protecting those classes.

On July 10, Judge Laplante in the District of New Hampshire did just that, with respect to a certified class defined as “[a]ll current and future persons who are born on or after February 20, 2025” and are covered by the two categories of the Trump Citizenship Order. He also preliminary enjoined implementation of the Trump Citizenship Order as to such children. Judge Laplante stayed that order for seven days to give the Government an opportunity to appeal, but for some reason the Government didn’t do so, and therefore the classwide injunction took effect on July 17.

In the Maryland case, the individual plaintiffs asked the district court to certify a class consisting of “all children who have been born or will be born in the United States on or after February 19, 2025, who are designated by Executive Order 14,160 to be ineligible for birthright citizenship, and their parents,” and also asked the court to issue a new preliminary injunction to protect the members of that class. In response, Judge Boardman ruled that she lacked jurisdiction over the preliminary injunction motion “because nearly every aspect of it is on appeal before the United States Court of Appeals for the Fourth Circuit”; but Judge Boardman further opined, as “an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1(a)(3),” that “[i]f the Fourth Circuit were to remand for the limited purpose of allowing this Court to decide the motion for a class-wide preliminary injunction, the Court would grant the motion.” Judge Boardman also indicated that she intends to rule on the motion to certify the class “expeditiously.” The court of appeals remanded the case to the district court yesterday. It’s therefore likely that Judge Boardman will soon certify a class and issue a preliminary injunction protecting all of its class members.

Essentially for the reasons discussed in David Marcus’ excellent law review article, these (and perhaps other) class certifications, and injunctions, are very likely to survive any appeals by the Government.

One caveat is worth flagging, however, about the pending class actions: Those classes cover only persons born on or after Feb. 19, 2025. The plaintiffs presumably chose that date because Section 2 of the Trump Citizenship Order—the section prohibiting federal officials from issuing or accepting certain citizenship documents—by its terms applies only to such infants. Section 3 of the Order, however, has no such temporal limitation. It directs federal officials to “take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order.” “This order,” of course, includes Section 1, in which President Trump has declared that no persons described therein are entitled to the privileges of birthright citizenship, regardless of their date of birth. As I read Section 3, therefore, it prohibits federal officials from treating such persons as U.S. citizens, full stop, whether they were born before February 20 or not.

In the Ninth Circuit oral argument, however, the attorney for DOJ represented that the Administration will apply the Order as a whole only to persons born after February 19, and thus that the Government will not, for example, try to remove from the United States someone described in Section 1 of the Order who has lived in the United States for many years. The agency guidance documents issued over the past few days—linked at the top of this article—similarly indicate that for persons born before February 20 (and their parents), the agencies will accept documents indicating birth in the United States as proof of their citizenship without more, i.e., without any further proof that their parents were citizens or lawful permanent residents on the person’s date of birth. (The SSA Guidance, for example, provides that for purposes of issuing Social Security numbers or cards, “a birth certificate showing a U.S. place of birth will not be sufficient documentary evidence of U.S. citizenship for persons born after the EO takes effect.” And the State Department Guidance specifies that an agent “must request” that an applicant for a passport “complete the parental information on the form DS-11 for individuals born in the United States on or after the effective date.”)

It’s not obvious to me why the Administration considers this to be a proper means of implementing Section 3 of the Citizenship Order. Indeed, if President Trump were correct that persons described in the two categories of Section 1 of the Order are not covered by the Citizenship Clause or the federal citizenship statute—a legal view that federal officials presumably would have to accept in the absence of an injunction—then it’s not apparent what authority executive officials would have to confer upon such persons any of the benefits and duties that are unique to citizens, unless such persons have been naturalized. (In their Supreme Court brief, the CASA plaintiffs warned of this possible application of the Citizenship Order to persons born before February 19, and in his reply brief the Solicitor General conspicuously didn’t offer any reason to question such a comprehensive reading of the reach of the Order.)

I suppose the agencies might have concluded that because it would be an administrative nightmare to determine whether the parents of persons born before February 20 are, or are not, described by Section 1 of the Order, it is reasonable for officials to apply a presumption that documentation of birth in the United States suffices to establish citizenship. But what about a case in which an agency learns of evidence that the parents of a person born in the United States before February 20 do fall within the confines of Section 1, such as proof that their father was a foreign national and they were born to a woman who was in the U.S. on a student visa? What then? Could the State Department deem that individual not to be a citizen and thus remove them from the United States? Could (or must) HHS, SSA, and other agencies cease providing them benefits that are statutorily limited to citizens and LPRs? The DOJ attorney represented to the Ninth Circuit panel that these sorts of things would not happen, but it is not at all obvious why they wouldn’t. Let’s hope the Citizenship Order never goes into effect so that such nightmare scenarios don’t arise.

(iv)

In addition to the steps described above that district courts might take to prevent the executive branch from applying an unlawful policy to nonplaintiffs (broad injunctions necessary to provide complete relief to the plaintiffs; class actions (in which case the class members are parties); and staying and vacating agency rules), Justice Kavanaugh opined in his separate concurring opinion in CASA that the Supreme Court itself has a responsibility to step in at an early stage to address the legality of a contested “major” executive policy in order to establish a uniform national treatment of that policy while its legality is being litigated (pp. 5, 8):

[I]n my view, there often (perhaps not always, but often) should be a nationally uniform answer on whether a major new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits. …

Often, it is not especially workable or sustainable or desirable to have a patchwork scheme, potentially for several years, in which a major new federal statute or executive action of that kind applies to some people or organizations in certain States or regions, but not to others. The national reach of many businesses and government programs, as well as the regular movement of the American people into and out of different States and regions, would make it difficult to sensibly maintain such a scattershot system of federal law. …

That temporary geographic, organizational, and individual variation in federal law might not warrant this Court’s intervention in run-of-the-mill cases—which is why it makes sense that this Court denies applications for interim relief when the Court is unlikely to later grant certiorari. See Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief). But in cases involving major new federal statutes or executive actions, uniformity is often essential or at least sensible and prudent. In those kinds of cases, disuniformity—even if only for a few years or less—can be chaotic. And such chaos is not good for the law or the country.

It’s difficult to overstate the tension between Justice Kavanaugh’s perspective here and that of many opponents of universal injunctions—and of the Court itself in United States v. Mendoza (1984), where it unanimously held that nonmutual collateral estoppel does not apply against the federal Government. In the eyes of those opponents (and the Mendoza Court), the “patchwork scheme” described by Kavanaugh is a virtue rather than (in Kavanaugh’s words) “unworkable or intolerable.”

To the extent a majority of the Court now shares Kavanaugh’s view that, for the sake of national uniformity, the Supreme Court “should not and cannot hide in the tall grass” (p.7), then even in a situation where lower courts disagree about whether to grant preliminary relief to individual plaintiffs (or to small groups of plaintiffs), the Court can and should expeditiously grant a certiorari petition filed by a losing party in order to establish a uniform (if perhaps temporary) national rule. (Or if a losing plaintiff applies for an injunction from the Supreme Court itself, the Court should, at least according to Justice Kavanaugh, rule exactly as it would do if the Government were applying for a stay of an injunction: “The standards should mesh so that this Court can ensure uniformity without regard to the happenstance of how various courts of appeals and district courts ruled.”)

If that becomes the new norm, then that’s yet one more reason—together with “complete relief” injunctions, classwide injunctions, and APA vacatur—that the Court’s conditional holding in CASA about courts’ equitable authority shouldn’t be of vast practical importance. In light of all these alternative avenues for broad relief, the suggestion that the Court’s decision in CASA “amounts to a revolution in the remedial practices of the lower federal courts” will, I suspect, prove to be greatly overstated. In particular, and notwithstanding CASA, I think it is very unlikely the Trump Administration will be able to implement the Citizenship Order any time before the Supreme Court rules on the merits of the President’s new definition of citizenship.

IV. Why the Court was Probably Mistaken About Federal Courts’ Statutory Authority to Issue Universal Injunctions

As explained in Part III above, I don’t think the answer to the “merits” of the universal injunction question is as important as many have suggested. And as I discuss in Part V below, I think other aspects of the majority’s opinion are much more troubling. For what it’s worth, however, I have significant doubts about Justice Barrett’s analysis of the statutory authority question. Others undoubtedly will write at much greater length about this topic. For the time being, here are some initial impressions about why I don’t find the Court’s opinion very convincing.

11.

For starters, Jack Goldsmith argues that the Court asked and answered the wrong question.

According to the Justice Barrett (p.4), “[t]he issue before us is … whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.” The 1789 Act, she explained (p.5), “endowed federal courts with jurisdiction over ‘all suits . . . in equity,’ and still today, this statute ‘is what authorizes the federal courts to issue equitable remedies.” Barrett then invoked the Court’s decision in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999), which held that the 1789 statute’s reference to “equity” “encompasses only those sorts of equitable remedies ‘traditionally accorded by courts of equity’ at our country’s inception.” “We must therefore ask,” wrote Barrett (p.6, again quoting Grupo), “whether universal injunctions are sufficiently ‘analogous’ to the relief issued “‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’” (For what it’s worth, Justice Barrett clerked for Justice Scalia the Term he wrote Grupo Mexicano.) The Court then concluded (id.) that “[n]either the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.”

As Jack Goldsmith points out, however, whereas the 1789 Act established federal court jurisdiction for diversity cases, such as Grupo Mexicano itself, CASA instead involved suits brought against federal officers pursuant to the court’s federal question jurisdiction, which Congress conferred on lower federal courts in Section 1 of the Jurisdiction and Removal Act of 1875. (Congress first conferred such federal question jurisdiction in 1801, in Section 11 of the “Midnight Judges Act,” but repealed that authority the next year, and it wasn’t revived until 1875.) Like the 1789 Act, the 1875 Act referred to certain sorts of suits—including both diversity and federal question cases—“of a civil nature at common law or in equity.” It follows, according to Goldsmith, that if it’s appropriate to apply a Guapo Mexicano-like “incorporating extant law” reasoning to “suits in equity” for federal-question jurisdiction cases, the Court “should have looked to the state of equity in 1875, not at the founding.” And, as Goldsmith notes, “[p]rinciples of equity and equitable remedies changed in nontrivial ways between 1789 and 1875, and were in flux in the post-Civil War period.”

Goldsmith is right about that much: the Court asked the wrong question, about the wrong federal statute. If it’s proper to apply Grupo Mexicano’s reasoning, then the Court ought to have analyzed the remedial practices of equity courts as of 1875, rather than simply the sorts of relief the High Court of Chancery in England issued in 1789. Moreover, if the Court had done so, that might have made a difference in the outcome of the inquiry because, as Justice Barrett herself pointed out (pp. 14-15), some state courts in the Nineteenth Century had begun to enjoin governments’ collection of unlawful taxes “against an ‘entire community,’ even when a ‘single taxpayer su[ed] on his own account’” (quoting Pomeroy’s Equity Jurisprudence); see also Justice Sotomayor’s dissent at pp. 19-20). Justice Barrett dismissed the relevance of such “taxpayer suits” (p.15)—characterizing them as an “inadequate historical analogy”—largely because “the practice of extending relief ‘with respect to any taxpayer’ was not adopted by state courts until the mid-19th century.” If, however, 1875 equity jurisprudence is the appropriate touchstone for federal-question cases, as Goldsmith suggests it should be, then the Court would not have been able to so easily dismiss the compelling taxpayer suit analogy.

There’s a catch, however. Rightly or wrongly, in at least a couple of old cases the Court held that the inquiry about British practices in 1789, of the sort approved in Grupo Mexicano, is appropriate not only in diversity cases but in federal question cases, as well.

In 1911, Congress codified the language of the 1875 Act, which referred to suits “in equity” for both diversity and federal question jurisdiction, in section 24 of the Judicial Code. (It was then found in 28 U.S.C. § 41(1); today it’s in 28 U.S.C. § 1331.) In 1932, in Matthews v. Rodgers—a federal question case—the Court opined that “[t]he equity jurisdiction conferred on inferior courts of the United States by section 11 of the Judiciary Act of 1789, and continued by section 24 of the Judicial Code (28 USCA § 41), is that of the English court of chancery at the time of the separation of the two countries.” In other words, the Court appears to have concluded—albeit without explanation—that when Congress expanded federal jurisdiction to cover federal question cases in 1875 (and then codified that authorization in 1911), it incorporated the “Court of Chancery as of 1789” gloss on the reference to “suits in equity” that the 1789 Act had established.

It’s reasonable to think the Court’s unexplained conclusion in Matthews was much too quick. (Is it really fair to attribute to the 1875 and 1911 Congresses an intent that courts must disregard the development of equity after 1789?) Nevertheless, it is precedent, and assuming the current Court would follow it, then presumably it would have come to the same conclusion that it announced in CASA, even if it had acknowledged that Congress established the relevant jurisdiction in 1875 rather than in 1789. In particular, I assume the Court majority would have felt free to disregard the development of equitable remedies, such as in taxpayer suits, that had become common in the years between 1789 and 1875.

This is further demonstration why the “What would British equity courts have done in 1789?” analysis the Court has invoked in cases such as Grupo Mexicano and CASA is fundamentally misguided. That, however, is a broader problem that predated CASA. Rightly or (more likely) wrongly, the Court has long been committed, at least on paper, to the view that Congress has confined federal courts’ authority to issue remedies that aren’t closely analogous to those issued by the Court of Chancery in the Eighteenth Century, whether the court is exercising its diversity jurisdiction or (as here) its federal-question jurisdiction.[5]

12.

OK, so now let’s turn to why I have doubts about the Court’s substantive analysis of federal courts’ equitable remedial powers, even assuming the propriety of the Grupo Mexicano inquiry.

Justice Barrett concedes (pp.10-11) that, even under Grupo Mexicano, “equity is flexible,” and that a “modern device need not have an exact historical match” with something the Court of Chancery did in 1789. She nevertheless insists (p.11) that universal injunctions do not have a “sufficiently comparable predecessor” found “at the time of our country’s inception.” Justice Barrett reaches that result, however, only because she adopts an exceedingly narrow, and selective, view of what counts as a “sufficiently comparable” remedy. The primary candidate for a founding-era analogy, invoked by the plaintiffs and by amicus Mila Sohoni, is the bill of peace, a form of litigation recognized in Eighteenth Century English courts in which a ruling for the plaintiff redounded to the benefit of similarly situated injured parties. Justice Barrett devotes a paragraph of her opinion (pp. 12-13) to the bill of peace.  She concludes that it is not sufficiently analogous to the modern “universal injunction.” Her reasoning, however, isn’t terribly convincing.

Justice Barrett begins by characterizing a bill of peace as involving “‘group [that] was small and cohesive.’” She doesn’t, however, cite any English legal authority as support for the proposition that the protected group had to be either small or cohesive (the only thing she cites is the Sam Bray article in which that quotation appears), nor does she respond to Justice Sotomayor’s assertion (p.24) that “[t]here is no equitable principle that caps the number of parties in interest.” More to the point, Justice Barrett doesn’t explain why the group of persons who benefit from the universal injunctions in the birthright citizenship cases wouldn’t be sufficiently “small and cohesive,” even if that were a necessary condition: After all, that group consists only of those persons covered by Trump’s executive order, and no one else. (The group’s cohesiveness is demonstrated by the straightforward exercise of the recent class certifications.)

That brings us to Justice Barrett’s principal ground of distinction: She insists (p.13) that whereas a modern court’s denial of a request for a universal injunction would bind only the parties to the suit, a denial of a bill of peace in 1789 “would bind all members of the group, whether they were present in the action or not.” I don’t know whether, in fact, such “bindingness of an adverse judgment” was an unyielding requirement of a suit seeking a bill of peace. Justice Barrett’s own account suggests that it might not have been: She quotes Justice Story as writing that there was such a binding effect “in most, if not in all, cases of this sort.” Nor is it clear how frequently the issue even arose in bill of peace litigation—i.e., how often “covered” nonparties were precluded from bringing a subsequent suit after a court had denied a plaintiff’s request for a bill of peace.

More importantly, even if Justice Barrett’s distinction turns out to be historically accurate, she offers no reason why it’s a distinction that ought to make a conclusive difference for purposes of identifying federal courts’ equitable powers. In response to Justice Sotomayor’s accusation (p.29) that the Court was treating equity as if it were “fr[ozen] in amber . . . at the time of the Judiciary Act,” Justice Barrett insisted (p.10) that “[w]e said it before, … and say it again: ‘[E]quity is flexible.’” (quoting Grupo Mexicano). All that is necessary, Justice Barrett acknowledged, is that the remedy in question be “within the broad boundaries of traditional equitable relief.” But if that’s so, why don’t universal injunctions of the sort at issue in these cases fall well within the “broad boundaries” established by bills of peace, even if they aren’t precisely coterminous? Justice Barrett doesn’t say. She simply quotes Judge Sutton to the effect that “[t]he domesticated animal known as a bill of peace looks nothing like the dragon of nationwide injunctions.” That’s certainly an evocative metaphor; but Justice Barrett doesn’t explain why one creature is any more fire-breathing than the other.

Nor does she convincingly distinguish the plaintiffs’ proposed bill-of-peace analogy here from the analogy on which the Court has relied in its recognition of Ex parte Young injunctions. In footnote 9 of her opinion (p.11), Justice Barrett notes that there was some precedent in equity for suits similar to those seeking Ex parte Young injunctions—namely, that “a court of equity could issue an antisuit injunction to prevent an officer from engaging in tortious conduct.” That much is true. Yet the only such equity cases Justice Barrett cites in support of that proposition were from the Nineteenth Century—just like the taxpayer suits that she dismisses as proper precedents for the universal injunction because they appeared too long after 1789. Moreover, although Ex parte Young actions are analogous in some respects to the antisuit injunctions on which Justice Barrett relies, in other respects they’re far broader (or apply to very different sorts of government action), as Professor Sohoni has explained. In other words, the antisuit injunctions that Barrett invokes are partly analogous to Ex parte Young injunctions, just as bills of peace are analogous to universal injunctions. Indeed, if anything, there’s a closer correspondence in the latter case. Thus, if it’s right, as Justice Barrett agrees, that Ex parte Young injunctions fall “within the broad boundaries of traditional equitable relief,” universal injunctions of the sort at issue in these cases should, too. Yet the Court decrees, without much explanation, that they don’t.

13.

The Court in CASA also overlooked Grupo Mexicano’s recognition (527 U.S. at 326) that courts of equity will ‘“go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when [as in Grupo Mexicano itself] only private interests are involved’” (quoting and distinguishing United States v. First Nat’l City Bank (1965), which in turn quoted Virginian R. Co. v. Railway Employees (1937)). The Court has frequently relied upon this understanding about the broader scope of equitable relief in cases implicating the public interest—see, e.g., the cases cited in Virginian Railway, 300 U.S. at 552. It did so again in 2015, in Kansas v. Nebraska; there, the Court reaffirmed that “[w]hen federal law is at issue and ‘the public interest is involved,’ a federal court’s ‘equitable powers assume an even broader and more flexible character than when only a private controversy is at stake’” (quoting Porter v. Warner Holding Co. (1946)). [It’s noteworthy, I think, that the Court hasn’t bothered to cite any Eighteenth Century analogies in Chancery when it has recognized this equitable power to advance the “public interest”—just as it didn’t inquire in CASA itself about whether the Court of Chancery ever protected nonparties to ensure “complete relief” for a plaintiff. The Court’s reliance on the equitable state of play circa 1789, in other words, has been suspiciously selective.]

Similarly, the Court has long held that in deciding whether to stay a lower-court ruling—a context in which the court is also acting in its equitable capacity—an appellate court must consider “‘where the public interest lies.’” Nken v. Holder (2009) (quoting Hilton v. Braunskill (1987)). (It’s noteworthy, I think, that the Court has not, to my knowledge, ever pointed to any practice in the Court of Chancery in 1789 to justify this consideration of the “public interest.”) As authority for the “public interest” consideration, Nken cited Hilton, in which the Court relied upon Virginia Petroleum Jobbers Ass’n v. Federal Power Comm’n (D.C. Cir. 1958), a decision in which the court of appeals explained that because “[p]arties aggrieved by administrative agency orders act as representatives of the public interest in seeking judicial review,” “no artificial restrictions of the court’s power to grant equitable relief in the furtherance of that interest can be acknowledged.” Virginia Petroleum in turn cited Scripps-Howard Radio v. FCC (1942), in which the Supreme Court referred back to the proposition from Virginian Railway, quoted above, that “[c]ourts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.”

The Court in CASA didn’t so much as mention these venerable equitable principles requiring consideration of the public interest, even though the birthright citizenship cases certainly implicate public interests of the highest order.

14.

Finally, and perhaps most conspicuously, Justice Barrett didn’t persuasively account for the Supreme Court’s own practices involving equitable relief, including at least three recent instances in which it has issued or affirmed injunctions protecting nonparties.

For starters, in footnote 7 of her opinion Justice Barrett rejected plaintiffs’ reliance on a handful of early Twentieth Century decisions, including most famously Pierce v. Society of Sisters (1925), in which the Court approved or even issued universal injunctions. Those decisions, she explained, came too late—more than a century after 1789—and in none of them did the Court discuss the propriety of the universal relief. The respondents invoked those cases, however, not because they have “precedential effect” (p.9 n.7, quoting Steel Co.), but instead precisely because it appears that none of the parties or the Justices in those cases thought there was anything legally dubious about such injunctions—a “dog that didn’t bark” argument. The fact that the issue went unremarked—even by the federal Government in Lewis Publishing Co. v. Morgan (1913), with respect to an injunction against any implementation of a federal statute—ought to have at least given the Court pause about its fundamental assumption that federal courts aren’t authorized to grant relief that deviates in any respect from forms of relief recognized in Chancery in 1789. The Justices, the Solicitor General, and other parties in those Twentieth Century cases appeared to assume that equity is far more flexible than that.

Even more problematically, Justice Barrett’s opinion doesn’t come to terms with at least three recent injunctions of the Court’s own making. First, in Trump v. International Refugee Assistance Project (2017), the Court cut back somewhat on “nationwide” injunctions lower courts had issued against implementation of President Trump’s “travel ban” executive order, but specifically approved the application of those injunctions to any and all foreign nationals with a bona fide relationship with a person or entity in the United States, whether or not such U.S. persons were among the plaintiffs. The Court drew this line “as an exercise of discretion and judgment,” applying “the equities of [the] given case,” including the “interests of the public at large.” 582 U.S. at 579. And it did so over a three-Justice partial dissent that objected that the Court’s relief extended beyond what was necessary to provide complete relief to the plaintiffs. Id. at 585 (Thomas, J., joined by Alito and Gorsuch, JJ.). It wasn’t, in other words, a “drive-by” ruling.

Second, just two weeks after the oral argument in CASA itself, in A.A.R.P. v. Trump, No. 24A1007, the Court not only issued temporary relief to a “putative” (i.e., not-certified) class of persons in danger of removal to El Salvador, but also explained that because federal courts (including a district court) “may issue temporary relief to a putative class, … we need not decide whether a class should be certified as to the detainees’ due process claims in order to temporarily enjoin the Government from removing putative class members while the question of what notice is due is adjudicated.” As Professor Sohoni wrote, a preliminary injunction that shields a putative injunctive class “is essentially just the same thing as a universal preliminary injunction—both types of order constrain the defendant’s conduct with respect to non-parties even when that relief is not indivisible and even when that relief is not necessary to secure complete relief for the named plaintiff. Neither type of order creates preclusive effects on non-parties. And both types of order have thus been treated as equally suspect by those who contend that Article III courts may never extend protection to non-parties.” Unsurprisingly, then, in his dissent in A.A.R.P., Justice Alito, joined by Justice Thomas, questioned the Court’s authority to confer such relief upon nonparties; he argued that such relief is appropriate only after the class is certified and the class members have been made parties to the suit. Yet the Court issued its order in A.A.R.P. nevertheless. Obviously, it did so with full knowledge of the “relief to nonparties” issue—indeed, presumably after the Justices had voted at conference on the resolution of CASA.

Last but hardly least, in the final sentence of its opinion in CASA itself, the Court decreed that “§ 2 of the Executive Order shall not take effect until 30 days after the date of this opinion,” i.e., until this past Sunday (July 27). That injunction would have constrained Executive branch officials even if no lower courts had, in that span, certified a class or reaffirmed existing universal injunctions on grounds that they’re necessary to afford the parties complete relief. The Court did not explain how its own injunction might be reconciled with its tentative understanding that Congress hasn’t authorized federal courts to award such relief.

V. The More Serious Problems with the Court’s Ruling

Regardless of the merits of the Court’s analysis of federal courts’ statutory authority to issue universal injunctions, the Court’s decision to (nominally or provisionally) grant the Solicitor General’s application for partial stays of the lower-court injunctions in the three birthright citizenship cases was problematic for several reasons.

15.

For starters, I share the reaction of many observers (see, e.g., Sam Bagenstos here) that the Court exercised poor judgment in choosing to opine about the universal injunction question in these cases.

As Justice Barrett noted (p.4), in recent years Solicitors General in administrations of both parties, as well as several members of the Court, have repeatedly urged the Court to “review the question whether Congress has granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy.” In virtually all of those previous cases, a district court had issued a universal injunction based upon its assessment of a sharply disputed and unresolved question of the legality of the Government action—or, in some cases (such as Judge Kacsmaryk’s mifepristone decision), based upon the court’s idiosyncratic, outlier doubts about a longstanding Government practice that the vast majority of courts would have considered to be lawful.

As Justices Sotomayor and Jackson stressed in their dissenting opinions, however, the birthright citizenship cases aren’t remotely similar to those earlier ones. In this instance, the President directed Executive branch officials to act in a way that would be inconsistent with the settled constitutional understanding of all three branches for over a century. Indeed, as I’ve discussed elsewhere, the Department of Justice had long been of the view that it’s not even a close question. Therefore, as Justice Kagan noted at argument, this was a case in which “there [was] not going to be a great deal of disagreement among the lower courts.” To the contrary. As Justice Sotomayor wrote (p.23), “this is not a scenario where granting universal relief will encourage forum shopping or give plaintiffs the upper hand. Quite the opposite: By awarding universal relief below, the District Courts just ordered the Government to do everywhere what any reasonable jurist would order the Government to do anywhere.”

Yet when those district courts unsurprisingly began to issue injunctions preventing such patently unlawful conduct, the Solicitor General asked the Court to stay the universal effect of such injunctions without challenging the substantive basis for the injunctions—that is to say, without even offering any argument that the Government is likely to prevail on the merits. Worse still, the Solicitor General chose to tender such a bespoke application for what appears to be a manifestly illegitimate reason—namely, to enable the Administration be able to treat many U.S.-born individuals as noncitizens for an extended period, knowing that such treatment would be enjoined in virtually every such case if only the injured party had the knowledge, courage and resources to file suit. In other words, as Justice Sotomayor noted in her dissent (p.42, n.11), “the Government has adopted a plainly unconstitutional policy in defiance of this Court’s precedent and then gamed the system to stymie this Court’s consideration of the policy’s merits.” The intended result of this stratagem, if the Government were successful, would be (as Justice Kagan put it at oral argument) that for months or years there would be an “untold number of people who, according to all the law that this Court has ever made, ought to be citizens who are not being treated as such.”

The Court shouldn’t have rewarded the Administration’s gamesmanship. To be sure, many of the Justices were obviously eager to push back on the scope of district court injunctions in cases challenging Executive branch initiatives. Yet the Court chose not to do so in any number of earlier cases involving challenges to Biden Administration initiatives, where the Executive branch had a much stronger basis for acting than the Trump Administration does here. The Court could have continued that forbearance a bit longer, until the issue was raised in a less momentous Trump case where the underlying basis for a court’s universal injunction was more dubious, or at least contested. Alternatively, the Court could have addressed the universal injunction issue in conjunction with a later decision on the merits of the legality of the Citizenship Order itself. Had it done so, it could have accomplished the same effect on district court practices, but in a context in which the “top line” result would be to preclude the Executive branch from acting in a patently unlawful way.

16.

The Court passed up yet another option, as well—an alternative that it should have been eager to embrace, even if it insisted on using CASA as the vehicle for opining on the universal injunction question. The Court could have held that generally it is not “equitable” for a district court to issue a universal injunction against the Executive branch, but that the birthright citizenship cases present a rare exception in which such relief is equitable precisely because the Government is seeking to act in contravention of a longstanding consensus view of the three branches about a fundamental constitutional guarantee. Justice Sotomayor’s dissenting opinion indicates that such a ruling likely would have secured the votes of at least eight, and possibly all nine, Justices: “There may be good reasons,” she wrote (p.23), not to issue universal injunctions in the typical case, when the merits are open to reasonable disagreement and there is no claim of extraordinary and imminent irreparable harm. … The universal injunctions in these cases, however, are more than appropriate.”

The majority’s failure to accept Justice Sotomayor’s invitation for an 8-1 or 9-0 opinion along those lines was an unfortunate missed opportunity.

* * * *

Which brings me, finally, to what I consider to be the most alarming errors in the majority opinion. They appear not in its analysis of the statutory question involving universal injunctions, but instead in the final section of the opinion, Part IV, where the Court turned to the more case-specific question of whether it was appropriate to grant the Solicitor General’s application for a partial stay of the injunctions in the three cases before it.

In Nken, the Court explained that such a stay “is not a matter of right,” even if the party seeking the stay is likely to prevail at the end of litigation and, indeed, “‘even if irreparable injury might otherwise result’” (quoting Virginian R. Co.). The propriety of a stay depends upon “‘the circumstances of the particular case,’” and the party requesting the stay bears the burden of showing that those circumstances justify an exercise of the court’s discretion.

The Court should have held that the Government failed to meet that burden here even if it was correct about the limits of federal courts’ statutorily authorized equitable remedial powers.

17.

As I noted above in Point 13, when deciding whether to stay a lower-court ruling, one of the factors the Court is supposed to consider is “‘where the public interest lies,” Nken v. Holder (2009) (quoting Hilton v. Braunskill (1987)), just as federal courts are supposed to take the “public interest” into account in deciding whether to issue preliminary relief in the first instance (as the lower courts did in the birthright citizenship cases). So, for example, in Trump v. IRAP (2017), discussed in Point 14, above, the Supreme Court tailored the preliminary injunction to protect some nonparties but not others—and to protect the First Amendment associational interests of countless numbers of American “individual[s]” and “entit[ies]”—“as an exercise of discretion and judgment,” applying “the equities of [the] given case,” including the “interests of the public at large.” 582 U.S. at 579.

The Court in CASA referenced the Nken standards for a stay three times (pp. 5, 24, 25). Yet, in stark contrast with Trump v. IRAP, it never even mentioned the “public interest,” let alone assessed how it might bear on whether the Court should grant the stay applications. That oversight is particularly unfortunate in the context of the birthright citizenship cases, where the public interest points so squarely against the Government’s effort to enforce, for as long as possible, a policy that all three branches have long viewed as unconstitutional. (For more details on the “public interest” factor, see pages 20-22 of CASA’s brief in the Supreme Court; see also New Jersey’s brief at 17:  “[I]t is never in the public interest for any applicant, let alone the Executive Branch, to implement policies directly contrary to this Court’s decisions—without even trying to show that this Court’s decisions and the Executive’s actions can cohere. Indeed, the States know of no case, and applicants have identified none, in which this Court granted relief to allow such an undisputed conflict with its precedents. Taking that step here would contravene the principles of caution and prudence that traditionally guide emergency requests.”)

18.

As the Court explained in Nken, an appellate court considering a stay application must also consider “whether the stay applicant has made a strong showing that he is likely to succeed on the merits” and “whether the applicant will be irreparably injured absent a stay.”

In part IV of CASA, the Court concluded that “the Government” would suffer irreparable harm if it were enjoined from applying the Citizenship Order to parties not before the court, regardless of whether it would be constitutional to implement that order and even, apparently, regardless of whether the Supreme Court itself is likely to effectively prohibit the Government from implementing the order when it eventually adjudicates the merits. In support of that conclusion, Justice Barrett invoked a variation on a proposition Chief Justice Rehnquist and Chief Justice Roberts have occasionally articulated, which is that when a government is enjoined from enforcing a preferred policy, that creates a harm that’s necessarily irreparable if the government eventually prevails in the suit. The apparent logic behind this view is that in such a case the government will have been temporarily denied the ability to govern as it saw fit (or, in this case, as the Constitution allegedly requires)—a bell that can’t be unrung for purposes of the period when the injunction was in place.

Others have sharpy criticized this theory of governmental irreparable harm. But even if it makes some sense in a case where the government is ultimately likely to prevail in the litigation—or even where the underlying legal question is a close call—the birthright citizenship cases aren’t that. Here, the Government policy at issue is one that all three branches have long considered unconstitutional. And the odds are overwhelming that the Supreme Court will conclude that the Citizenship Order is unlawful when it finally addresses the question. Thus, as Justice Sotomayor writes in dissent (p.16), “by enjoining the Government from violating settled law, the District Courts’ orders do not cause the Government any harm” at all, let alone irreparable harm.

Why did the majority conclude otherwise? Its fundamental mistake is the way in which it treated the first Nken factor, namely, whether the defendants have “made a strong showing that [they are] likely to succeed on the merits.” Of course the defendants can’t do so in these cases. So how can Justice Barrett possibly assert that they’ve satisfied the “likelihood of success” inquiry?

First, Justice Barrett treats the ultimate constitutional issue here—the legality of Trump’s new definition of citizenship—as being, in effect, up for grabs (p.25): “[W]e take no position on whether the dissent’s analysis is right.” That statement is either a very disturbing harbinger of what some of the Justices think about the merits or a shockingly tone-deaf formalism that purports to deny what everyone knows to be true.

Either way, Justice Barrett then proceeds to suggest (p.25) that, in any event, the first Nken factor doesn’t require the stay applicant to make any showing about whether it’s likely to prevail in the suit itself: “That is not how the Nken factors work.” Instead, the Nken “likelihood of success” factor, according to Justice Barrett, requires the party seeking a stay merely to demonstrate that it’s likely to prevail on the discrete question it has put before the Court (here, the permissible scope of the preliminary relief the district court could issue), regardless of whether the party is ultimately likely to prevail in the litigation. And, the Court continues, the Government has made such a showing in these cases because any ultimate judgments against it likely won’t extend to nonparties. It follows, according to the Court, that “the Government is likely to suffer irreparable harm” from the universal preliminary injunctions because they extend further than any valid final judgments could do.

The first problem with this analytical framing is that it takes an overly narrow view of who constitutes “the Government” in a case such as this. Donald Trump and his agency officers are not the entirety of “the Government.” It includes Congress and the Supreme Court, too. And if and when the Administration were to implement the Citizenship Order, that will work to the detriment of the other two branches: The Executive branch will violate Congress’ enactments, and disregard the Court’s controlling precedent (Wong Kim Ark). Precluding a universal injunction therefore doesn’t serve the interests of those coordinate branches (nor the interests of the States that ratified the Fourteenth Amendment). More importantly, the defendants here are representatives of the United States, i.e., of the People as a whole, who undoubtedly are injured when their executive representatives violate the law, whether those violations are in the context of individuals who’ve already sued or those who haven’t.

Nor does the Court’s reasoning make a whole lot of sense, at least in a case such as this one. Justice Barrett reasoned that, in applying Nken, the Court asks whether the applicant “is likely to prevail on the merits of the issue before us, not whether he is likely to prevail on the merits of the underlying suit.” That proposition is in tension, however, with the Court’s statement one year earlier, in Ohio v. EPA (2024), that this first Nken factor concerns “who is likely to prevail at the end of th[e] litigation.”[6] In the birthright citizenship litigation, the defendants are virtually certain to lose at the end of the litigation.

Indeed, the Trump Administration is not likely to “prevail at the end of the litigation” in any meaningful sense, even with respect to nonparties. In footnote 18 of her opinion, Justice Barrett takes Solicitor General Sauer at his word that not only would he petition for certiorari when the Government lost “one” of the cases currently in the court of appeals (something that’s now happened), but also “that the Government will respect both the judgments and the opinions of [the Supreme] Court.” Therefore, if the Court holds, as it should, that the Citizenship Order is unlawful, the Administration will never enforce it against anyone.

What’s more, as Justice Sotomayor noted (p.16), Justice Barrett’s reasoning leads to absurd results, at least in a case where, as here, the party moving for a stay clearly lacks legal authority to do the thing the district court injunction purportedly can’t reach: “Suppose an executive order barred women from receiving unemployment benefits or black citizens from voting. Is the Government irreparably harmed, and entitled to emergency relief, by a district court order universally enjoining such policies? The majority, apparently, would say yes.” Yet “it strains credulity” even to treat the Executive branch “as irreparably harmed by injunctions that direct it to continue following settled law” (dissent at p.17). As the Ninth Circuit put the point in its opinion last week, the federal Government “cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations” (internal citation omitted).

Accordingly, the Court’s conclusion as to irreparable harm can’t possibly be equitable (which is, after all, the touchstone for deciding whether to grant a stay)—unless the Court might actually rule in the Government’s favor on the merits of the legality of the Citizenship Order, i.e., unless Justice Barrett’s statement that “we take no position” on the underlying legal question means that the issue is actually up for grabs.

I doubt that’s the case.  Or, at least, I sure hope that at least two of the Justices in the CASA majority agree with the three dissenters that Trump’s definition of birthright citizenship is indefensible. (In my follow-up essays, I’ll explain why the Government’s principal arguments in support of the Order are mistaken.) If that’s correct, then that’s all the more reason the Court shouldn’t have chosen this moment—this case—to issue an opinion about the limits of district courts’ authority to enjoin unlawful executive actions.

– – – – – – – – – –

[1] In the unlikely event the Court reaches the question, it might be difficult for the Court to distinguish its approval of State standing in similar circumstances in the recent Biden v. Nebraska student-loan case and the apparent willingness of at least four Justices to do the same in the case challenging the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. As long as the Court is open to generous standing rules for “red” States to challenge Democratic presidents’ policies, it at least ought to be reluctant to make different rules for “blue” States when they challenge Republican presidents’ initiatives. That said, in one recent case involving a “red” State challenge, a majority of Justices signaled that perhaps they are open to cut back on the scope of State standing.  In United States v. Texas, 599 U.S. 670 (2023)—a case in which the Court held that Texas and Louisiana lacked Article III standing to sue Biden Administration officials for failure to enforce the immigration laws—the Court noted that “in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending,” and that when a State asserts that a federal law has produced only those kinds of indirect effects, “the State’s claim for standing can become more attenuated.” Id. at 680-81 n.3. It’s therefore possible the Court might begin to apply more searching standing scrutiny to red and blue State plaintiffs alike in future cases, even if it doesn’t reach the question in the birthright citizenship cases.

[2] Moreover, because the Trump Citizenship Order expressly directs federal officials not to accept States’ citizenship documents, the States’ suits arguably fall within an established exception to the Warth/Kowalski third-party doctrine. The Ninth Circuit accepted that argument last week (see pp. 20-21), as did an earlier First Circuit panel (see pp. 128a-131a). The Solicitor General, however, argued in response that because the Citizenship Order doesn’t require States to do or refrain from doing anything, nor subject States to potential sanctions, the exception in question is inapposite. I haven’t studied this question sufficiently to have a view on how the Supreme Court might resolve it—something I think the Court is unlikely to do in the context of the birthright citizenship cases.

[3] The individual plaintiffs sought and obtained a preliminary injunction in the District Court for the Western District of Washington, and the Government appealed that injunction in their favor only on the merits. The Government did not argue that the court of appeals should reverse the injunction, let alone that the individuals’ claims should be dismissed, merely because their children are now class members in a case in New Hampshire. And for good reason: Judge Laplante’s certification of the class in Barbara v. Trump (D.N.H.), discussed below, isn’t a valid basis for dismissing the individuals’ suits in Washington. Those individuals have already secured preliminary relief in the suit they filed before the Barbara class was certified. The fact that their children also benefit from a later-issued injunction on the other coast, and might ultimately prevail in that other case being litigated by other class representatives, is no reason to strip the plaintiff parents of their right to continue the suit in which they’ve already secured preliminary relief.

[4] Justice Barrett indicated (p.17) that such an argument should not be available for an individual plaintiff: “[P]rohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief: Her child will not be denied citizenship. Extending the injunction to cover all other similarly situated individuals would not render her relief any more complete.” CASA and ASAP, however, have argued that a universal injunction is necessary in order to ensure that their members obtain “complete relief.” It wouldn’t be feasible, they contend, to limit an injunction to cover only persons with a CASA or ASAP membership card because many parents would be deterred from proffering such a card due to a reasonable fear that it would signal that they might be unlawfully present and thereby subject them to immigration enforcement proceedings.

Justice Thomas, in his concurring opinion in CASA (p.5), read the majority opinion to have shut off this “complete relief” argument for CASA and ASAP: “[T]he Court today readily dispatches with the individual and associational respondents’ position that they require a universal injunction,” he writes, “notwithstanding their argument that a ‘plaintiff-specific injunction’ would be difficult to administer and would subject the associations’ members to the burden of having ‘to identify and disclose to the government’ their membership” (quoting Tr. of Oral Arg. 141–142). In her dissent (p.37), Justice Sotomayor characterized the Barrett opinion similarly: “Inexplicably, … the Court declares that, for the associational and individual respondents, injunctions enjoining the Government from enforcing the Citizenship Order against them (and only them) would have sufficed.”

Justice Barrett’s opinion for the Court, however, did not “declare” that CASA and ASAP’s “necessary for complete relief” theory was foreclosed, nor did Justice Barrett even refer to, let alone discuss the merits of, the associations’ argument that Justice Thomas identified. Therefore, as I read the Court’s opinion, that argument remains open on remand in the Maryland case, at least in theory. That said, the Thomas and Sotomayor opinions probably reflect internal discussions among the Justices (or earlier drafts of the Barrett opinion), and therefore they may suggest that a majority of the Court has significant skepticism of that argument. As I note in the text, however, this question might fall to the wayside in the Maryland case.

[5] As many observers have explained, there’s a good case to be made that Congress never intended to limit federal courts to the relatively static notion of equity reflected in Grupo Mexicano (and now CASA, too). After all, even the Court of Chancery itself implemented the system of equitable remedies in an accretive manner. As Owen Gallogly recently wrote:

[T]he remedial system administered by the Founding-Era Court of Chancery was not the dynamic, flexible, and discretionary form of justice that some modern commentators have advocated. But neither was it frozen in time; the Chancellor was not categorically limited to granting only those exact remedies that his forebears had issued. Reality lay somewhere between these two extremes. At the Founding, … the Chancery was governed by—and did not depart from—a core set of rules. But it could still develop, elaborate, and modestly update the law of equity by accretion of precedent—that is, by applying those core rules to new factual and legal contexts. Only avulsive changes to equity jurisprudence required legislative approval from Parliament.

Moreover, courts in the U.K. itself continued to fashion new equitable remedies throughout the nineteenth and twentieth centuries. Nevertheless, for purposes of this post I am accepting the Court’s view that Grupo Mexicano, Matthews and Atlas Life are binding and appropriate precedents.

[6] Justice Barrett cited two recent cases in which the Court (she suggests) focused only on a discrete disputed issue, rather than on which party was likely to win the suit, in applying the “likelihood of success” Nken factor. Those cases are not analogous to CASA, though. In OPM v. AFGE, No. 24A904 (Apr. 8, 2025), the Court granted a stay of a preliminary injunction because it found that the plaintiffs’ allegations were “insufficient to support [their] standing.” But if the AFGE plaintiffs lacked standing, their suit would have been dismissed, i.e., they wouldn’t have prevailed at the end of the litigation—whereas in CASA the plaintiffs are almost certain to prevail. In Gutierrez v. Saenz, No. 23-7809 (July 16, 2024), the Court granted a capital defendant’s application for a stay of execution while it was considering whether to grant his certiorari petition in a federal habeas suit seeking access to the State’s DNA evidence. The Court didn’t explain why it granted the stay, but presumably the Justices concluded (assuming they applied Nken) that Gutierrez was likely to succeed in his habeas petition (which he eventually did, the day before the Court issued its decision in CASA), in which the question was merely whether the Due Process Clause required the State to turn over the DNA evidence before putting Gutierrez to death, not whether the State would subsequently be legally entitled to execute him. In both cases Justice Barrett cited, in other words, the Court assessed whether the party applying for a stay was likely to prevail at the end of the litigation at hand.

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

The post Taking Stock of the Birthright Citizenship Cases, Part I: Unpacking <i>Trump v. CASA, Inc.</i> appeared first on Just Security.

In the meantime, the Acting Solicitor General has asked the Supreme Court to vacate the TROs.  In my humble opinion, that application for vacatur, and the government’s reply brief in support of it that the Acting SG filed yesterday, fall considerably short of the historical standards for quality and forthrightness that typify briefs that the Office of the Solicitor General files in the Supreme Court.  Whether or not the Justices (or others) agree with that general assessment, I thought it would be useful to quickly highlight several of the more remarkable things about the reply brief the Acting SG filed yesterday, given that the Justices might be considering the application on a very expedited basis.  (For readers seeking a more detailed understanding of what the case is about, the ACLU’s brief in opposition to the Acting SG’s application contains much more comprehensive responses to the arguments in the Government’s opening brief.  And the ACLU’s recently filed memorandum in support of its motion for a preliminary injunction includes a far more detailed description of what’s been happening with respect to the individuals transferred to the brutal El Salvador prison pursuant to the President’s implausible invocation of the Enemy Aliens Act of 1798.).

Here are four of the most troubling aspects of the Acting SG’s briefs:

1. The legal basis for the Government’s request that the Supreme Court vacate the TROs is fairly discrete and somewhat technical. The Acting SG argues that because each of the hundreds of individuals in question can challenge their removal from the U.S. pursuant to the AEA Proclamation in individual habeas corpus petitions in the districts where they are being detained—which for many or all of them is the Southern District of Texas—the Administrative Procedure Act (APA) precludes them from bringing a class action for prospective relief from removal pursuant to the APA itself, which is what they’ve done in the suit before Boasberg in the U.S. District Court for the District of Columbia. As the Acting SG puts it, “respondents cannot obtain relief because they brought the wrong claims in the wrong court.”

As I note in Point 2 below, I think this argument for habeas exclusivity is dubious, and the Acting SG does not even engage with the principal Supreme Court precedents that bear on the issue.  The ACLU argues likewise.  The ACLU brief also explains to the Court, however, that the Government’s proposed alternative (and thus, in the Government’s view, the exclusive) means of challenging removal—individual habeas petitions—is chimerical, largely because the Trump Administration would likely whisk the individuals off to an El Salvadoran prison as soon as the TROs are no longer in effect, thereby effectively precluding any meaningful opportunity for judicial review via habeas.  That became evident with the government’s admissions in the appellate oral argument below. This is how Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit starkly put the point in her opinion last week:

The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal.  Oral Arg. 1:44:04-1:45:51. It is irreparable injury to reduce to a shell game the basic lifeline of due process before an unprecedented and potentially irreversible removal occurs.

In response to this concern, the Acting SG offers this cryptic sentence in her reply brief:  “[T]his Office has been informed that aliens detained pursuant to the AEA receive notice that they are detained pursuant to the AEA, and could thus bring habeas petitions to challenge that detention, even if they cannot challenge the notice itself or collaterally attack removal as in a Title 8 proceeding.”  (Emphasis added.)

A few things are especially noteworthy about this rather inscrutable sentence.  First, of course, is the fact that the awkward passive-voice assertion (“has been informed”) does not identify who has “informed” the SG’s Office, what evidence they offered to support the assertion, or the nature of the alleged notice to the covered individuals.  At the very least, it leaves a factual uncertainty about which individuals received the notice; from whom; and when.  (The named plaintiffs, for example, have represented that they didn’t receive any notice or other paperwork before they were boarded on a plane that would have taken them to El Salvador but for Chief Judge Boasberg’s first TRO.)

Presumably, however, the SG is referring to (though not identifying) this one-page “notice” document, which apparently has been given to some, though perhaps not all, of the covered individuals.  Here’s what that document tells an individual who receives it:

You have been determined to be at least fourteen years of age; not a citizen or lawful permanent resident of the United States; a citizen of Venezuela; and a member of Tren de Aragua.  Accordingly, you have been determined to be an Alien Enemy subject to apprehension, restraint, and removal from the United States.  You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal.  Until you are removed from the United States, you will remain detained under Title 40, Unite[d] States Code, Section 21. (Emphasis added.)

Even if, as the SG suggests, that document informed persons of their right to challenge their alleged AEA detention, the recipients wouldn’t have an obvious reason to challenge that detention, as such, because the government already was detaining each of them under other statutory authority before the President made public (and thus effective) his AEA Proclamation on March 15, and therefore the individuals would continue to be detained even apart from the Proclamation.  The important effect of the AEA Proclamation—and the subject of the litigation before the Court—is not to allow the government to detain the individuals, which it was already doing and can continue to do even while the TROs are in effect (a point Boasberg has repeatedly emphasized), nor even to afford the government authority to remove them pursuant to ordinary immigration laws (another point Boasberg has stressed), but instead to provide alleged authority to remove them immediately, and without any notice or time to provide for a hearing, to the Salvadoran prison.  Hence, the only notice of any value in this context would be one that unequivocally informs the individuals of a clear right to challenge in court the legality of their immediate removal.

In any event, this notice document does not say—in the words of the Acting SG—that the person “could thus bring habeas petitions to challenge that detention,” let alone that the person can file a habeas petition to challenge their imminent removal from the United States to a Salvadoran prison.  To the contrary, it specifically tells the recipient that “[y]ou are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal”!  In other words, it appears to be an effort to mislead the individual into thinking that no judicial review is available.  That likely explains why the Acting SG fails to point the Court to the document itself—namely, that it appears to undermine the thrust of the SG’s argument about the adequacy of the purported habeas alternative.

What’s more, according to declarations filed with the preliminary injunction motion, the Government does not inform the individuals’ immigration attorneys that they are to be removed pursuant to the AEA.  And, from all that appears, many or most of the individuals receive the document in question immediately before they are transferred to planes bound for El Salvador, i.e., well before they might have the understanding and wherewithal to file a habeas petition (even if the notice offered them that information—which it decidedly does not (see above)).  From the Government’s perspective, this appears to be a feature, not a bug:  As Attorney General Bondi explained to Chief Judge Boasberg just Tuesday in her brief in opposition to the motion for a preliminary injunction, “although aliens who are deemed to fall within the scope of the Proclamation may file a petition for habeas challenging that designation, providing an added layer of procedural safeguards, nothing requires the government to delay removal to permit access to habeas on the alien’s preferred timeline.”

Best I can tell, that’s a barely-disguised euphemism to confirm Judge Millett’s alarm—namely, that although the Trump Administration concedes that each of the individuals in theory has a legal right to file a habeas petition to challenge the legality of their AEA removal from the United States to El Salvador, the Administration is going to make every effort to ensure that they are on the planes en route to El Salvador before they might file any such petitions.

On page 1 of her reply brief, the Acting SG tries to assure the Court that “[t]his case is not about whether TdA members subject to removal under the Alien Enemies Act get judicial review; they obviously do.”  In light of the Administration’s practices, however, that wouldn’t be “obvious[]” at all if the Court were to vacate the TROs.

2. The merits of the government’s argument about habeas exclusivity depend upon a reference in 5 U.S.C. 704, which was part of Section 10 of the original APA.  Section 704 provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review” under the APA.  The government argues that because individual habeas petitions offer the prospect of “adequate remed[ies],” Section 704 precludes review under the APA, including the sort of class action the ACLU has brought in this case.*

As I explained in Point 1, above, the habeas alternative here is far from “adequate.”  More fundamentally, however, the Government’s Section 704 argument would be questionable even if habeas were an adequate alternative means of challenging the legality of the removals.  I’m not going to go deep in the weeds here on this question; it suffices to note that the Acting SG does not even grapple with a couple of Supreme Court precedents that point strongly against the Acting SG’s reading of the APA.

First, the Court held in Shaughnessy v. Pedreiro, 349 U.S. 48, 52 (1955), that Section 10 of the APA itself provided “a right of judicial review of deportation orders other than by habeas corpus.”  See also Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (“Beginning in 1952, an alternative method for review of deportation orders, namely, actions brought in federal district court under the Administrative Procedure Act (APA), became available.”) (citing Pedreiro).  (Although Congress in 1961 replaced district court APA review with review in a court of appeals as the “sole and exclusive” procedure for challenging deportation orders issued under the Immigration and Naturalization Act, that preclusion statute didn’t affect removals or deportations made pursuant to other statutes, such as the AEA, which remain subject to APA challenge.)

So what about the “for which there is no other adequate remedy in a court” language in APA Section 10?  Notably, neither the Acting SG nor any Justice in Pedreiro suggested that that language precluded APA review, notwithstanding the available habeas alternative.  Indeed, that language was “‘almost completely ignored in judicial opinions,’” Bowen v. Massachusetts, 487 U.S. 879, 902 (1988) (quoting Kenneth Culp Davis), for decades, until the SG invoked it in Bowen v. Massachusetts.  In that case, the Court explained that Congress include the language in question because “[a]t the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action; for example, Federal Trade Commission and National Labor Relations Board orders were directly reviewable in the regional courts of appeals, and Interstate Commerce Commission orders were subject to review in specially constituted three-judge district courts.”  Id. at 903 (emphasis added).  “When Congress enacted the APA to provide a general authorization for review of agency action in the district courts,” the Court explained, “it did not intend that general grant of jurisdiction to duplicate th[ose] previously established special statutory procedures relating to specific agencies.”  Id. (emphasis added).  Yet the Court made clear that Section 704 “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.”  Id.  Citing Pedreiro itself, the Court in Massachusetts further opined that “[a] restrictive interpretation of § 704 would unquestionably, in the words of Justice Black, ‘run counter to § 10 and § 12 of the Administrative Procedure Act.  Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes….’”  Id. (quoting Pedreiro, 349 U.S. at 51).

The Government argued in Massachusetts that Section 704 should be construed to bar district court review of the agency action in that case because monetary relief against the United States was available in the Claims Court under the Tucker Act.  “This restrictive—and unprecedented—interpretation of § 704 should be rejected,” the Court held, “because the remedy available to the State in the Claims Court is plainly not the kind of ‘special and adequate review procedure’ that will oust a district court of its normal jurisdiction under the APA.”  Id.  Likewise, a habeas action to challenge a deportation order is plainly not the kind of “special” and agency-specific review procedure that ousts a district court of its usual APA jurisdiction under Section 704.

The ACLU understandably cited Pedreiro and Massachusetts in its brief.  Perhaps there is some way of distinguishing them. (I haven’t done extensive research on the question.)  Yet the Acting SG does not even mention those precedents in her reply brief, let alone make an effort to explain why they don’t foreclose her Section 704 argument.

3. By its terms, the Alien Enemies Act authorizes the removal of enemy foreign nationals pursuant to a proper presidential proclamation if those persons “refuse or neglect to depart” from the United States. 50 U.S.C. 21.  Thus, as Boasberg explained, “[b]y its plain terms, … the Act withholds from the President or his officers the authority to remove an alien enemy until that person has been given time to decide whether to depart on his own. ….  It follows that summary deportation following close on the heels of the Government’s informing an alien that he is subject to the Proclamation—without giving him the opportunity to consider whether to voluntarily self-deport or challenge the basis for the order—is unlawful.”

The Acting SG doesn’t so much as mention this fundamental aspect of the AEA, which would at a minimum provide covered persons a means of returning to their home nations rather than being involuntarily transferred to a Salvadoran prison.

4. On the merits of the President’s authority to issue the Proclamation (which the Court need not decide in the context of this “shadow docket” application), the most obvious reason why the AEA does not authorize the Proclamation is that Tren de Aragua (the TdA) is not a foreign “nation or government,” and thus the persons identified in the Proclamation, even those who are TdA members, are not “natives, citizens, denizens, or subjects” of the TdA, see 50 U.S.C. 21. In order to get around this deficiency, in his Proclamation President Trump purported to find that the TdA is “conducting irregular warfare against the territory of the United States … at the direction … of the Maduro regime in Venezuela.”

Acting at the direction of a government, however, does not transform an individual or a group into a government itself (let alone a nation).

What’s more, the consensus view among executive intelligence agencies fewer than 20 days before Trump’s proclamation reportedly was that the Venezuelan government does not control TdA. (Note also the CIA Director’s and Director of National Intelligence’s admissions before Congress late last month.) Presumably that explains why DOJ (wisely) has not relied upon Trump’s “at the direction of the Maduro regime” so-called “finding” in the lower courts.  Surprisingly, however, the Acting SG, however—particularly in her opening brief—relies heavily on that finding.  In response to the ACLU’s flag about the contrary Intelligence Community view, the Acting SG writes in her reply brief that “respondents’ own source reports internal disagreement among the intelligence agencies, Resp. App. 434a, and it is the President’s prerogative to weigh information from those agencies.”  What that “source report” says, however, is merely that the FBI “partly dissented” from the CIA and NSA conclusion, in the sense that the FBI believes that TdA “has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.”  Even that FBI conclusion, apparently based upon dubious evidence, doesn’t support the view that the Maduro regime “directs” TdA’s so-called “irregular warfare” against U.S. “territory.”  (From all that appears, the President modified the term “warfare” with the adjective “irregular” because … what the TdA is doing in the United States is not actually waging the sort of war that can trigger an AEA proclamation.  That’s another problem with the Trump Proclamation.)

The President surely can “weigh” competing information from agencies, but he doesn’t have a “prerogative” to make a finding of Maduro “direction” of the TdA if there’s no evidence to support it.  (If the President were adhering to the legal requirement that proclamations and executive orders must obtain OLC’s approval for form and legality before being signed, see Exec. Order 11030, § 2(b)-(c); 28 CFR § 0.25(b), such a “finding” would never have seen the light of day in the absence of supporting evidence.  It appears, however, that the President has systematically disregarded the prescribed OLC role, which thereby facilitates Trump’s issuance of orders and proclamations that are full of false factual statements and that lack adequate legal justification.)

– – – – – – – – – – – –

* The Government also argues that “claims at the historical core of habeas may be brought only in habeas,” and asserts that the claims here are “core” habeas claims.  For the reasons explained by the ACLU however, this argument borders on the frivolous because the plaintiffs are not challenging their detention (which antedated the AEA proclamation and that presumably would continue even if the Proclamation is declared invalid) but are, instead, challenging the Government’s authority to remove the individuals to El Salvador without complying with any of the ordinary immigration procedures—something far from the “core” of habeas.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: A cherry tree in bloom near the U.S. Supreme Court in Washington, D.C., U.S. (Sarah Silbiger/Bloomberg via Getty Images)

The post Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court appeared first on Just Security.

The Trump administration denied on Sunday that it had violated a court order by deporting hundreds of Venezuelan immigrants to a prison in El Salvador over the weekend, saying that the president had broad powers to quickly expel them under an 18th-century law meant for wartime.

Is that plausible? Consider this timeline:

i. At approximately 5:00 p.m. EDT on Saturday, Chief Judge Jeb Boasberg of the U.S. District Court for the District of Columbia convened a hearing in J.G.G. v. Trump to adjudicate the named plaintiffs’ motions (1) to certify a proposed class of “[a]ll noncitizens who were, are, or will be subject to [President Trump’s] Alien Enemies Act Proclamation and/or its implementation,” and (2) to temporarily enjoin Trump Administration officials from removing any persons in that class from the United States pursuant to the patently unlawful Proclamation the President signed on Friday (and published earlier on Saturday) directing such removal. [See Steve Vladeck’s piece yesterday on the details of the Proclamation and why it is unlawful.]

Remarkably, the DOJ attorney did not know the “status of the planes,” whether any “imminent” removals pursuant to the proclamation were planned for the next 24 or 48 hours, or even whether there were to be “removal flights” (Tr. at 5, 11). Chief Judge Boasberg postponed the hearing to afford counsel time to determine whether removals were imminent but, upon reconvening, counsel conveyed that although he had (finally) talked to his clients, “I do not have additional details I can provide at this time” and that “although “I have been trying to get those details, … I don’t presently know when I would be able to get that” (Tr. at 15-16). (This has been a recurring phenomenon in the past few weeks, in which DOJ apparently was not consulted ahead of time for its views about the legality of proposed action, and thus government counsel appearing in court to defend the Trump Administration are in the dark about what their clients are doing or on what authority.)

ii. During the hearing, and with knowledge that it was in progress, officials apparently directed aircraft carriers filled with (at least) 137 individuals who would be part of that plaintiff class, and subject to the requested injunction, to depart Harlingen, Texas for locations overseas: At 5:26 p.m., GlobalX Flight 6143 departed EDT (it landed in Comayagua, Honduras at 7:36 p.m. EDT); and 19 minutes later, at 5:45 p.m., p.m. EDT, GlobalX Flight 6145 departed Harlingen, bound for San Salvador, El Salvador, where it landed at 8:02 p.m. EDT. The U.S. transferred these persons to El Salvadoran officials, and they are now in custody in an El Salvador prison. (According to a court declaration by a Department of State official, this arrangement was the result of “intensive and delicate negotiations between the United States and El Salvador, and between the United States and representatives of the Maduro regime” in Venezuela.”)

Before going any further, pause to take stock of just that much: During an emergency federal court hearing about whether to enjoin the government from doing something, the government did that very thing, manifestly in order to circumvent the order that it anticipated the court would issue imminently. I don’t recall offhand any historical precedent where executive branch officials have embarked on such an audacious action to anticipatorily stymie the proper functioning of a federal court—let alone to do so in the midst of a judicial hearing.

iii. Between 6:45 and 6:51 p.m., while the planes were in transit (albeit, according to the government, no longer in U.S. airspace), Chief Judge Boasberg orally granted the plaintiffs’ motions (Tr. p.41 (“I am prepared to rule”)), and directed the DOJ attorneys at the hearing “that you shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States … . [T]hose people need to be returned to the United States. However that’s accomplished, whether [by] turning around a plane or not embarking … those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.” (Tr. 43.)

iv. At approximately 7:26 p.m., after the hearing ended, Chief Judge Boasberg supplemented his oral directive with a written “Minute Order.” “Given the exigent circumstances that it has been made aware of this morning,” he wrote, “[the court] has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set. As Plaintiffs have satisfied the four factors governing the issuance of preliminary relief, the Court accordingly ORDERS that: 1) Plaintiffs’ Motion for TRO is GRANTED; 2) Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court; and 3) The parties shall appear for a Zoom hearing on March 17, 2025 [that’s later today (Monday)] ….”

v. According to Axios, “[i]nside the White House, officials discussed whether to order the planes to turn around. On advice from a team of administration lawyers, the administration pressed ahead.”

vi. Eleven minutes after Judge Boasberg issued his written order, a third aircraft, GlobalX Flight 6122, departed Harlingen, Texas at 7:37 p.m. EDT, bound for Comayagua, Honduras. It is not yet known (to the court, the plaintiffs’ counsel and the public, anyway) whether that third aircraft carried any passengers who were subject to the court’s orders. (The Washington Post just posted this helpful timeline of the flights.)

* * * *

Given all of this, what’s the government’s theory for why the defendants did not violate a court order?

Here are the two things the Administration has said thus far. (By the time you read this, there might be further relevant court filings to consider.)

First, last evening DOJ filed a “Notice to the Court” stating that the defendants had not removed the five named plaintiffs who were subject to an earlier TRO issued by the Chief Judge. The Notice also contained this sentence about the second TRO (discussed above): “Federal Defendants further report, based on information from the Department of Homeland Security, that some gang members subject to removal under the Proclamation had already been removed from United States territory under the Proclamation before the issuance of this Court’s second order.” (The Notice failed to disclose to the court that such removal from U.S. territory occurred during the very hearing to determine whether to enjoin such removal.)

Second, apparently in response to the Axios article linked above, White House Press Secretary Leavitt issued this statement (as quoted by Axios):

“The Administration did not ‘refuse to comply’ with a court order. The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory. The written order and the Administration’s actions do not conflict. Moreover, as the Supreme Court has repeatedly made clear—federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion. A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.” (Emphasis added.)

Two things are especially noteworthy about this statement. First, Leavitt’s qualification about the defendants’ alleged compliance with the TRO is very deliberately qualified: “The written order and the Administration’s actions do not conflict.” Leavitt did not say—presumably because it ain’t so—that the Administration’s actions didn’t conflict with the Judge’s oral order, of which the relevant officials were well aware and that they discussed while the planes were enroute to Central America. (It could be that Leavitt is trying to exploit the fact that Chief Judge Boasberg said at the hearing that his “Minute Order” would “memoraliz[e]” his oral order—and the Minute Order does not specify (as did the oral order) that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States” and “this is something that you need to make sure is complied with immediately.” If so, I’m confident that Chief Judge Boasberg will consider that a form of gamesmanship that’s beneath what’s expected of the Executive Branch and the government lawyers who appear before him, given his unequivocal and pointed admonitions at the hearing itself.) Nor did Leavitt (or DOJ) refer to the third plane that departed after the judge’s written order (which may or may not have contained persons subject to that order).

And then there are the final two sentences, which might fairly to be read to be a shot across the bow to the federal judiciary, intimating that insofar as the defendants have disregarded a judicial order (i.e., the oral injunction), they have the constitutional authority to do so.

* * * *

Earlier this morning, the plaintiffs’ ACLU and Democracy Forward lawyers requested that Chief Judge Boasberg “direct the government to submit one or more sworn declarations from individuals with direct knowledge of the facts clarifying the following:

1) whether any flight with individuals subject to the Proclamation took off after either the Court’s written or oral Orders were issued;

2) whether any flight with individuals subject to the Proclamation landed after either the Court’s written or oral Orders were issued;

3) whether any flight with individuals subject to the Proclamation was still in the air after either the Court’s written or oral Orders were issued; and

4) whether custody of any individuals subject to the Proclamation was transferred to a foreign country after either the Court’s written or oral Orders were issued.”

Chief Judge Boasberg has scheduled a hearing this afternoon, at which he could well consider defendants’ apparent audacious defiance of his unequivocal directive, and the Administration’s none-too-veiled suggestion that it has the constitutional authority to disregard an order of an Article III judge that it deems to be beyond the court’s “jurisdiction.” If the judge concludes that any defendants have disregarded his injunction, he might then proceed to address how that violation might be remedied or sanctioned. See, e.g., Nken v. Holder (2009) (explaining that “[a]liens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal” (citing the government’s brief, which explained that “[b]y policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens’ return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal”)).

* * * *

A quick, additional observation on the “merits” of the President’s proclamation, and on the disturbing recent degradation of standards in DOJ briefs:

Essentially for the reasons Steve discussed in his article, Trump’s proclamation is not authorized by the Alien Enemies Act, most obviously because Tren de Aragua is not a “foreign nation or government.” (Judge Boasberg agreed at the hearing (p.41) that “I don’t think the AEA provides a basis for removal under this proclamation.”) Nor is that a “political question” that courts are constitutionally precluded from reviewing. See, e.g., Zivotofsky v. Clinton (2012). In its currently pending motion for a stay of the TROs in the court of appeals, however, DOJ argues in addition that, “[b]eyond the statute, the TRO violates the President’s inherent Article II authority.” According to that motion, the President has a constitutional authority to “summarily remove” from the United States any individuals whom the President deems “members” of an organization that the President determines to “represent[] a significant risk to the United States.”

This alarming and far-reaching argument about a unilateral presidential removal authority is groundless. In support of it, DOJ writes only the following: “The exercise of authority in this case is firmly supported by longstanding Supreme Court precedent. As that Court has repeatedly held, Article II confers upon the President expansive authority over foreign affairs, national security, and immigration. See Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).”

“[L]ongstanding Supreme Court precedent”? The Court in Harisiades didn’t say anything at all about presidential authority—the case involved the constitutionality of a deportation statute—let alone that the President has an Article II authority to remove persons from the United States (or over “immigration” more broadly). And as for Curtiss-Wright: That decision also contained nothing about a presidential removal or immigration power. To be sure, Justice Sutherland’s opinion contained some far-reaching dicta about presidential authority over “foreign policy.”  As I wrote here a decade ago, however, they were never persuasive, and thus it was unsurprising that no fewer than eight of the Justices in Zivotofsky v. Kerry “set out to bury those dicta once and for all—to send a strong signal to Executive lawyers to stop citing Curtiss-Wright so indiscriminately.” Chief Justice Roberts, for example, joined by Justice Alito, explained that the Court’s precedents “have never accepted such a sweeping understanding of executive power” as that found in Sutherland’s “expansive language.”

If that’s what “firm[] support” for Article II authority looks like …

IMAGE: Elevated view of E. Barrett Prettyman United States Courthouse, as seen from the East Building of the National Gallery of Art. (via Wikipedia)

The post Is the Trump Administration Deliberately Violating a Federal Court Order? appeared first on Just Security.

That has been the consensus understanding among courts, scholars and executive branch agencies for well over a century … until four weeks ago, when President Trump issued Executive Order 14160.  Section 1 of that Order declares that neither the Fourteenth Amendment nor the federal statute incorporating similar language (8 U.S.C. 1401(a)) confers U.S. citizenship upon two categories of “persons born … in the United States” whose fathers are not citizens or lawful permanent residents: (i) those whose mothers were “unlawfully present in the United States” on their date of birth; and (ii) those whose mothers were lawfully present in the country at the time of birth but only on a “temporary” basis (such as a mother present in the U.S. on a student, work or tourist visa).

This past Saturday, the New York Times published an Op-Ed by professors Randy Barnett and Ilan Wurman that attempts to defend the E.O.’s radical departure from generations of legal and scholarly consensus.  According to Barnett and Wurman, Trump’s Order is “not necessarily” inconsistent with the plain language of the Citizenship Clause.  They argue, in particular, that the Clause might not guarantee citizenship to someone born in the U.S. if both of their parents were not U.S. citizens and entered the U.S. unlawfully.

As we’ll explain below, Barnett and Wurman’s apologia for the Trump Executive Order is fundamentally flawed and irresponsible in several critical respects—most importantly, in its contention that a child born in the United States is denied citizenship because his or her parents once violated the law.  The wide-ranging criticism the Op-Ed has generated in just four days should not be understood to reflect a serious scholarly debate among reasonable, competing perspectives; rather, it is a sign of how simultaneously wrong and dangerous the Barnett/Wurman attempt to defend the Trump Executive Order truly is.  [Yesterday, in reaction to initial criticisms, Professors Barnett and Wurman published a blogpost elaborating upon and defending their Op-Ed.  That post does not eliminate the central errors in their argument.  We address some of the points Barnett and Wurman raised in yesterday’s post in footnotes here.]

Before we address the major flaws in the Barnett and Wurman argument, it’s worth noting that their fixation on whether a child’s parents entered the country unlawfully should have led them to condemn one part of the Trump E.O. as unconstitutional: namely, Section 2(a)(2), which purports to deny birthright citizenship to U.S.-born persons (e.g., Kamala Harris) whose mothers were present in the U.S. lawfully but temporarily, such as pursuant to student, work, or tourist visas.  Rather than addressing this part of the Trump E.O., Barnett and Wurman attempt to avoid it by claiming, at the end of their Op-Ed, that the E.O.’s “exclusion of children born to mothers who are ‘lawful but temporary’ residents is a more complicated question not addressed here.”  Not so.  On their own theory of the Citizenship Clause, the question isn’t complicated in the slightest:  Section 2(a)(2) of the Trump Executive Order is unconstitutional, full stop.

Barnett and Wurman’s theory of the Citizenship Clause also undermines the argument the Department of Justice is advancing in support of the Trump E.O.  Because DOJ is trying to defend all of the Executive Order, it resorts to arguing that the Citizenship Clause doesn’t apply to any persons born in the United States if both of their noncitizen parents had allegiance to another nation at the time of their birth, without regard to whether those parents entered the U.S. lawfully.  Barnett and Wurman don’t even mention this DOJ argument, let alone defend it—and it can’t be reconciled with their argument that the question turns on the lawfulness of the parents’ entry.  (The DOJ argument is also flatly inconsistent with the Supreme Court’s binding holding in U.S. v. Wong Kim Ark (1898), which recognized birthright citizenship of a person born in the United States even though both he and his parents were subjects of the Emperor of China.)

In addition to not acknowledging the necessary implications of their argument, Barnett and Wurman’s Op-Ed fails even to mention that Congress enacted a citizenship statute in 1940—re-enacted in 1952 and codified today as 8 U.S.C. 1401(a)—that tracks the language of the Citizenship Clause.  The 1940 and 1952 Congresses were fully aware that the government had long treated U.S.-born children as citizens even if their parents had entered the nation unlawfully—for example, by issuing passports to those children.  Congress did not call that practice into question.  Congress therefore afforded such children a form of statutory citizenship.  Regardless of whether Barnett and Wurman’s (or Trump’s) understanding of the Fourteenth Amendment is correct, the Trump E.O. directs federal officials to disregard that federal statute—something the President may not do.  In their Op-Ed, Barnett and Wurman simply ignore the statute, presumably because it undermines their effort to bolster their defense of the Trump Executive Order.

At the very end of their follow-up post, Barnett and Wurman concede that Section 1401(a) “seem[s] to treat aliens who came here unlawfully as falling within the birthright citizenship rule” (emphasis added) and that, “[t]o the extent such laws have been enacted, an executive order that violates them would be improper.”  Well, Congress has enacted such a law, and therefore—for that reason alone—the Trump Executive Order is improper.  In other words, even if the Trump E.O. reflected an accurate understanding of the Fourteenth Amendment’s Citizenship Clause—and it doesn’t—nothing in Barnett and Wurman’s defense of the E.O. even attempts to save it from the patent illegality that flows from its inconsistency with federal statutes, whose meaning has been settled for decades.  It’s disappointing that Barnett and Wurman only grudgingly and equivocally acknowledge that decisive point—and only then in a supplemental online post—given that the theme (and conclusion) of their Op-Ed is that “the justices will find that the case for Mr. Trump’s order is stronger than his critics realize.”

* * * *

Barnett and Wurman’s constitutional argument begins by acknowledging that the requirement in the Citizenship Clause that a person born in the United States be “subject to the jurisdiction thereof” in order to become a citizen at birth was intended to incorporate what the Court in Wong Kim Ark later referred to as “the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.”  169 U.S. at 693.  Barnett and Wurman badly misunderstand, however, when and how “allegiance” and “protection” apply, and that misunderstanding leads them to make several critical mistakes with respect to the Citizenship Clause.

The thrust of Barnett and Wurman’s argument is, first, that the Citizenship Clause doesn’t confer citizenship upon someone born in the U.S. unless that person’s parents were “within the allegiance and under the protection of” the United States on the date of birth, and, second, that parents who entered the country unlawfully are not “within the allegiance” of the nation.  Nothing in their Op-Ed, however, offers support for either of these misguided propositions.

Note, for starters, that Barnett and Wurman’s argument is unmoored from the actual text of the Fourteenth Amendment (including its original public meaning).  There’s not much doubt that children born in the United States become “subject to” its jurisdiction, in both a colloquial and technical sense, at the moment of their birth.  Moreover, the Citizenship Clause doesn’t refer to “allegiance” or “protection;” nor does it say anything about whether someone who enters the nation unlawfully lacks “allegiance” thereto.  And, most importantly, the Fourteenth Amendment doesn’t refer to the parents of persons born in the U.S. at all.

Barnett and Wurman therefore have little choice but to rely instead upon what they insist is the “original purpose” of the Citizenship Clause (an unusual move for scholars nominally faithful to the public meaning of the text).[1]  Yet their purpose-based account rests upon several indefensible assumptions about the role of allegiance and protection under the Fourteenth Amendment and about the relationship between a parent’s allegiance and the citizenship of his or her child born in the United States.

To say—as the Court did in Wong Kim Ark—that a person is “within the Allegiance” and “within the protection” of the United States, is simply to explain that the person in question must comply with the nation’s laws and that the nation itself has an obligation to confer upon that person the protection of its laws.  That is certainly true with respect to U.S. citizens, but those reciprocal obligations are not unique to citizens.  Visitors, too, are bound to obey U.S. law while they are here and protected by U.S. law—for example, laws against violent crime in the national parks or federal consumer protection statutes.  (To be sure, there are some rights—for example, the right to vote—that are reserved for citizens; and citizens’ obligations of allegiance, unlike noncitizens’, extend beyond our boundaries.  But that does not undermine the general point.)

This is where Barnett and Wurman’s constitutional argument begins to go off the rails.  Their first major mistake is to assert that if a foreign national in the United States has not consented to allegiance to the United States—in Barnett and Wurman’s terms, if he or she has not “entered into the social compact,” “pledged obedience to the laws” or “given” their allegiance—then that person is not “within the allegiance and protection” of the nation.

That’s not so.  “Allegiance” to the laws of the United States, as that concept was described by the Court in Wong Kim Ark, does not depend upon any affirmative pledge or agreement.  Indeed, even if a visitor to the U.S. insists that she doesn’t have any obligation to comply with U.S. law—and is willing in return not to be protected by it—it remains the case that she is in fact obliged to comply with it (she has a duty of “allegiance” to it), and she is protected by it, while she is present here.  As the Court wrote in Wong Kim Ark:  “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.  His allegiance to the United States is direct and immediate, … although but local and temporary, continuing only so long as he remains within our territory.”  (Emphasis added.)  Allegiance is, in short, a duty, not a choice.  Barnett and Wurman simply disregard this long-established and uncontested understanding of allegiance and obligation.[2]

Even if Barnett and Wurman’s assertion about the need for “consent” to allegiance were correct, they then proceed to make an even more fundamental error:  They insist that persons who entered the United States unlawfully have not agreed to allegiance to the United States because, like an invading army, “they did not come in amity,” i.e., in friendship.

What can Barnett and Wurman possibly mean by that?  This is the key sentence on which their argument depends:  “[O]ne cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.”

That assertion is even more indefensible than their claim about the necessity of a “pledge” of allegiance.  The fact that an individual has violated a U.S. law, even at the moment of entry, hardly means that the person has come to the United States with hostile intent or has disclaimed any allegiance to (and protection of) U.S. law.  Indeed, the noncitizens covered by the Trump E.O., even if they had to skirt U.S. law to enter the country, are more law-abiding than many of their U.S.-born counterparts once they’re here.  A recent multi-year study, for example, found that undocumented immigrants are roughly half as likely to be arrested for violent crimes as the U.S.-born.  (What’s more, many of the parents described in the Trump E.O.—those who entered with visas—did come “in amity” even under Barnett and Wurman’s cramped understanding; at most they simply overstayed their welcome by not leaving at the end of their visa period.  And the visa-holders covered by Section 2(a)(2) of the Executive Order haven’t even done that—both their entry and their presence at the time of birth were lawful.)  Virtually all of the parents at issue gladly would, and their children regularly do, pledge allegiance to the flag, and to the republic for which it stands.  Therefore, if their consent to “allegiance” were necessary—and it’s not—there’s no basis for Barnett and Wurman to insist that these persons have refused to confer such consent.[3]

Barnett and Wurman acknowledge that if this essential predicate of their argument were correct, it would also mean that such unlawful entrants are not entitled to the reciprocal protection of the Equal Protection Clause—which appears in the same section of the Fourteenth Amendment as the Citizenship Clause—because the Equal Protection Clause also “was based on the same allegiance-for-protection theory.”  Yet the Supreme Court rejected that notion in 1886, explaining in Yick Wo v. Hopkins that the Equal Protection Clause is “universal in [its] application, to all persons within the territorial jurisdiction.”  118 U.S. at 369.  And in 1982, all nine Justices of an otherwise fractured Court in Plyler v. Doe held likewise, specifically with respect to persons who entered the nation unlawfully.  See 457 U.S. at 210-16; see also id. at 243 (Burger, C.J., dissenting) (“I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.”).  Once again, Barnett and Wurman simply disregard this binding precedent.

Finally, even if Barnett and Wurman were correct—and they aren’t—that persons who enter the United States unlawfully aren’t themselves “within the allegiance and protection” of the nation because they’ve refused to “give their allegiance” to it, there is no basis to insist, as Barnett and Wurman do, that such a disability would be imposed upon their children born in the United States.  Those children, after all, have not violated any law at all by being born here, nor have they done anything else to disclaim allegiance.  As Garrett Epps has written, “[t]o punish babies, much less to proscribe and entirely outlaw them, because of the perceived sins of their parents is alien to our moral and ethical tradition.”  Indeed, if there’s one thing our Constitution unequivocally rejects, it’s hereditary guilt, even where a parent has levied war against the nation.  See Article III, section 3 (“no Attainder of Treason shall work Corruption of Blood”).

As Judge Leo Sorokin wrote last Thursday in his excellent opinion in Doe v. Trump (D. Mass.), the Citizenship Clause itself “speaks only of the child,” not of her parents.  “A child born in the United States necessarily acquires at birth the sort of allegiance that justified birthright citizenship at the common law.  That is, they are born ‘locally within the dominions of’ the

United States and immediately ‘derive protection from’ the United States.  [Wong Kim Ark, 169 U.S.] at 659.  A child born here is both entitled to the government’s protection and bound to adhere to its laws.  This is true regardless of the characteristics of the child’s parents, subject only to the narrow exceptions identified in Wong Kim Ark.  Allegiance, in this context, means nothing more than that.  See id. at 662 (‘Birth and allegiance go together.’).”

In his testimony on behalf of the Department of Justice in 1995, Walter Dellinger explained that although other nations “may seek more consensual and perhaps more changeable forms of citizenship,” in this nation “the simple, objective, bright-line fact of birth on American soil is fundamental.”  Therefore, each person born in the United States “is born equal, with no curse of infirmity, and with no exalted status, arising from the circumstance of his or her parentage.  All who have the fortune to be born in this land inherit the right, save by their own renunciation of it, to its freedoms and protections.”  In their apparent effort to give credence to the Trump Executive Order, Professors Barnett and Wurman indefensibly ignore these core, constitutive principles.

– – – – – – – – – – – –

[1] In their follow-up post, Barnett and Wurman explain that because the word “jurisdiction” is protean (“a word of many meanings”), there’s little choice but to assess the framers’ intent, and that because (as the Supreme Court has held) the framers intended the Citizenship Clause to “encapsulat[e]” the common law jus solis rule, it’s necessary to “extrapolate[e]” the “principle and operation” of that common law rule to the situations described in the Trump Executive Order—situations that were never specifically considered by those who developed the common law rule.  Whatever the merits of this methodological move (and we are skeptical), the result cannot be squared with the constitutional traditions and understandings that we actually have in this country.

[2] In their supplemental post, Barnett and Wurman concede that no affirmative, or “explicit,” consent is necessary—after all, that would lead to the absurd result that the Fourteenth Amendment did not confer citizenship upon former slaves (who never expressly consented to U.S. allegiance) and, on Barnett and Wurman’s view, on the children of such slaves, either.  Accordingly, Barnett and Wurman must rely upon the notion that undocumented foreign nationals engaged in conduct that necessarily entailed their denial of consent to allegiance.  For the reasons we explain in the text, that’s simply wrong as a descriptive matter.

[3] Barnett and Wurman’s follow-up post includes this opaque paragraph:

To say that children born to persons who illegally enter in violation of the nation’s sovereignty must be citizens because the nation is exercising the powers of sovereignty over them is a fatal contradiction and absurdity.  Of course, the nation is exercising a kind of sovereignty in the sense it can subject them or their parents to some degree of domestic law.  But the nation is not exercising sovereignty in any meaningful sense because one of the core rights of sovereignty—to control who enters the territory—is by definition being violated.

The key, boldface sentence is a non-sequitur.  Even if someone violates a rule implementing the nation’s exercise of the “core” sovereign right to control who enters the territory, it would hardly mean that the nation “is not exercising sovereignty in any meaningful sense” over that person once she’s present in the territory.  More importantly, this paragraph is focused upon the wrong actor—the parent.  A child born in the United States “enters the territory” in just that way, i.e., by being born here.  And that birth in no way implicates, much less violates, any of the nation’s “core rights of sovereignty.”

(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)

IMAGE:  worn statement of witnesses verifying the departure statement of Wong Kim Ark (via archives.gov)

The post The Fundamental Flaws in the Barnett/Wurman Defense of Trump’s Birthright Citizenship Executive Order appeared first on Just Security.