Holder spoke about how, when values are shared, there are great benefits of concurrent state and federal criminal jurisdiction, the “most important” one being “the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious crimes.” Working together reinforces for the public the principles of equal treatment under law and that those exercising government power and force – including deadly force – must be held accountable when they don’t meet minimum standards of decency and restraint. Working together also reinforces the idea that all of us, united and regardless of the past and historical divisions from where we come, support dignity and fair treatment for everyone. Holder recounted successful civil rights enforcement partnerships of state and federal law enforcement in South Carolina, Georgia, and Indiana. And he described a Memorandum of Understanding between the National District Attorneys Association and the Department of Justice that embodied the spirit of unity and why it’s so important. He said –

The MOU is intended to foster a more cooperative approach by local, state and federal authorities in the investigation and prosecution of color of law and hate crimes cases. It requires early communication among local, state and federal prosecutors to explore the most effective way to investigate these cases and to utilize the best investigative resources or combination of resources available. There are many benefits to such an approach: it encourages the use of coordinated or joint local, state and federal investigations in those instances where coordinated or joint investigation is in the best interest of justice; it decreases time delay between local, state and federal authorities about these important cases; and it increases public confidence in the criminal justice system. It is this type of cooperative effort, endorsed by the Department of Justice and the National District Attorneys Association, that maximizes all of our law enforcement capabilities in these important cases.

From Cooperation to Disunity

Unfortunately, division is a foundational part of our country’s history, and, accordingly cooperative law enforcement is not the norm, especially around civil rights. In fact, any fair reading of American history shows that working together in the enforcement of civil rights has been the rare exception.

And now, over the last weeks and months, that division has been forcefully exploited and reasserted by the Trump Administration. There will be no cooperation, for example, between federal and Minnesota law enforcement in the investigation of the ICE agent who killed Renee Good. There will be no federal civil rights investigation at all. Given what we know already, this has led not just to outrage from many career prosecutors in the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office in Minnesota, but to outright resignations.

From the time of its enactment in 1866, the Civil Rights Act, the basis for 18 U.S.C. § 242, the law under which federal authorities investigate and prosecute excessive force incidents by those acting “under color of law” has been controversial and has raised federalism and many other concerns. In years past, federal prosecution was seen by many who were dubious of civil rights laws in the first place as an encroachment on state sovereignty. A political and pragmatic compromise was forged over time, with the Justice Department adopting what it called a “backstop policy” for criminal civil rights investigations. Under the policy, when state or local authorities undertake a “good faith” investigation into an act of possible law enforcement misconduct of a hate crime, the Justice Department defers to such investigation and foregoes its own involvement. As Holder explained it to the Judiciary Committee –

. . . the Department works with state and local officials and would generally defer prosecution in the first instance to state and local law enforcement. Only in highly sensitive cases in which the federal interest in prompt federal investigation and prosecution outweighs the usual justifications of the backstop policy would the federal government take a more active role. Under this policy, we are available to aid local and state investigations as they pursue prosecutions . . . Under this policy, we are also in a position to ensure that, in the event a state cannot or will not vindicate the federal interest, we can pursue prosecutions independently.

For many, the backstop policy was at least partially a copout and a failure. Despite many heroic federal civil rights prosecutions (full disclosure: I prosecuted criminal civil rights cases in the Criminal Section of the Civil Rights Division for five and a half years), during the post-Reconstruction era, the era of Jim Crow, and even to today, many critics believe there has been insufficient federal assertion of its constitutional responsibility to oversee state and local law enforcement and ensure that the principles of the 14th Amendment – that no person should be denied life or liberty by those acting under color of law without due process of law – were upheld.

But whether federal enforcement was sufficient or not in practice, there is no denying that federalism and the basic post-Civil War constitutional structure – a system of divided and shared power between the federal and state governments – can serve as a force, albeit perhaps inadequate, pushing back against abuses of power by one part of our government or too much power accumulating in one level of it. When power is abused in federal, state, or local government, federalism provides paths for other levels of government to address the underlying problems such as civil rights deprivations, sometimes through criminal investigation and prosecution and sometimes through other means.

Many times, those paths and the pushback of one governmental entity against another lead to unsatisfying results, such us in recent years when fatal police shootings that seem to many to be excessive do not lead to convictions. But serving as a backstop and investigating allegations of misconduct, even when ultimately not fully satisfying, serves as a check. It provides, at a minimum, some affirmation of the values of justice and fairness, and as resistance to the abuse of power. It is a critical feature of our constitutional order, even when only partially successful.

State and Local Law Enforcement Authorities As the New Backstop, albeit with many challenges

Federal and state roles in the protection of civil rights have, in many ways, now reversed. Federal law enforcement is carelessly and recklessly violating rights. It is projecting both the President’s quest for power and his desire to punish those who disagree with him. At the same time, federal civil rights enforcement is being methodically eliminated. When all this happens, there is an imperative for state and local officials to serve as a new backstop; to respond and investigate allegations of federal and local misconduct.

As is true when the federal government acts as a civil rights backstop, state and local action here will be difficult and may not be wholly satisfying either, especially when reviewing federal law enforcement action. State and local prosecutors face serious constitutional and practical obstacles to bringing criminal cases against federal officials who violate state law. An important one is American federalism itself, which defines the delicate balance of federal and state authority. Fundamental to the boundaries of authority is the Supremacy Clause of Article VI. It establishes that that federal laws are the “supreme Law of the Land” and take precedence over conflicting state laws. It ensures that the national government’s legitimate powers can be exercised without interference from state governments. And it has meant that legitimate acts of federal officials cannot be prosecuted under state law. That architecture has served important values. It is why federal marshals could not be prosecuted for trespassing or other state crimes under Mississippi law for escorting James Meredith to register as the first African-American to attend the University of Mississippi. The same principal applies equally when federal officials use force, including deadly force. In 1890, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that a federal marshal was immune from state prosecution for actions necessary to protect a Supreme Court justice’s life. The marshal shot and killed a man who attacked the justice. The Court ruled that because the shooting was within the marshal’s federal duties, he was immune from state prosecution.

But the Court also made clear that when a federal official’s actions are not “necessary and proper” to fulfilling official responsibilities, the possibility of state prosecution remains. Drawing the line between legitimate federal law enforcement use of force – necessary and proper to fulfill law enforcement responsibilities – and illegitimate and excessive use of force can be difficult. Sometimes it requires frame-by-frame analysis. It is part of finding the right balance of federalism and the rule of law, one that maintains the legitimacy and public trust in our constitutional order. It’s what makes this kind of backstop work difficult and often unsatisfying. And if recent Court decisions are any guide, we can be fairly certain that this Supreme Court will guard the constitutional boundaries surrounding the President and presidential power very carefully.

The same federal courts that have recognized that federal officials are insulated from state prosecution for the legitimate and reasonable exercise of federal law, though, have also clearly recognized that state criminal law provides an important check against the abuse of power by federal officials acting outside the scope of their authority. There is a long history of state action against federal officials who act outside their legitimate authority and violate the civil rights of those in this country. The Supreme Court has also made clear that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.”

 In the 1879 case of Tennessee v. Davis, a federal revenue collector was charged with state murder, in an incident that occurred while enforcing federal revenue laws and seizing equipment used in illicit distilleries. The revenue collector claimed he was assaulted and fired upon by a number of armed men, and that he returned fire only in self-defense. The Supreme Court allowed the case to proceed – though, in terms of venue, for the trial to be removed to federal court under a removal statute that still exists in form today. More than a hundred years later in Mesa v. California, in 1989, the Supreme Court allowed a postal worker to be prosecuted in California state court for manslaughter after the mail truck she was driving collided with and killed a bicyclist. Also in the 1980s, in Arizona v. Manypenny, the federal courts upheld a state conviction of a border patrol agent for shooting a Mexican man.

The Manypenny case is particularly instructive.

The agent, William Manypenny, was on duty near the Arizona/Mexico border, patrolling federal land in Pima County, Ariz. Manypenny and his partner, in plain clothes, confronted three Mexican men who were traveling north. The partner ordered the men to stop. One of the men turned and ran back south toward the border. Manypenny shouted for the man to stop. When he didn’t, Manypenny fired his shotgun three times in the man’s direction, hitting him in the upper spine, severing the spinal cord and leaving him a quadriplegic. Manypenny was later indicted, under Arizona law, for assault with a deadly weapon for shooting the man. A jury convicted him, but the trial judge set aside the conviction. The State of Arizona appealed, and after the Supreme Court approved of the appellate procedure, the court of appeals held that the judge’s entry of judgment of acquittal was error and reversed it.

Throughout American history, cooperative state-federal enforcement of civil rights has been the exception rather than the rule. More often, the Justice Department faced resistance to robust civil rights enforcement by the states, and through the Civil Rights Division had to step in as the backstop to ensure a proper response to the abuse of power by law enforcement. Now, the states face resistance from the Justice Department to legitimate and robust civil rights enforcement. Occasionally in the past, state and local authorities have stepped in when federal officials, under color of their authority, committed acts beyond that authority. Such investigations and prosecutions are rare in part because state authorities must show that they are not prosecuting federal officials who are carrying out their duties in good faith but rather are prosecuting because those officials engaged in unlawful conduct under the guise of federal law enforcement.

The capacity and willingness of state and local prosecutors to act, not in contravention of legitimate federal interests, but in defense of their citizenry when federal actors exceed their legal bounds, is not only consistent with the structure of American government but vital to it. Such efforts serve to ensure that the law applies equally to all, regardless of office, and are a fundamental safeguard of public confidence in the administration of justice. It is a feature of federalism.

 The Role of Civil Society

With the dramatic expansion of ICE and the limited vetting and training of new agents being deployed around the country, oversight is critical. The actions of the Trump administration mean that such oversight is now left largely to state and local government action. But our circumstances also demand something of the rest of us. We need to support those state and local officials who are taking up this new responsibility. The Trump administration has already resisted any cooperation with state and local officials examining federal enforcement in the case of Jonathan Ross; it has refused to share information and evidence about the shooting of Good with Minnesota officials. It will also undoubtedly retaliate against those local officials who examine federal enforcement in ways that are themselves abuses of power. We cannot ask state officials to put themselves in the line of the administration’s fire if we are not prepared to back them up.

 In that vein, I recently worked with members of the American Bar Association’s Criminal Justice Section to develop a resolution that “recognizes both the necessity of protecting legitimate federal functions and the equally compelling obligation to ensure that federal authority is not abused.” It publicly supports state and local officials who initiate the kind of difficult investigations of federal law enforcement accused of abuse. As the ABA report accompanying the resolution states, “[u]pholding the rule of law and public rights sometimes requires principled action by state and local authorities, free from political or institutional pressure, to hold all officials – federal or otherwise – accountable before the law.”

This resolution encourages appropriate action by state and local prosecutors to fill any accountability gaps when federal officers act outside the limits of their lawful authority and commit crimes under state law. In so doing, it affirms a commitment to a government of laws, where checks and balances are preserved, and where no person is above accountability. It is a small gesture of support to the men and women in the offices of Attorneys General and District Attorneys across the country who will courageously step in to protect all of our rights. We need to find other ways to support them.

AGs, DAs, and other state officials also must extend their oversight and pushback to excessive force beyond just criminal investigations and prosecutions. As Samantha Trepel indicated in an earlier essay in these pages, because of the challenges of criminal prosecutions of federal officials, states should – and are – pursuing creative methods to, at the very least, document perceived abuses. Governor JB Pritzker of Illinois created the Illinois Accountability Commission, “which aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies,” and make recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents (e.g., Minnesota). And more can be done. It’s all part of a necessary response to an excessively aggressive federal law enforcement deployment across the country, one that threatens the civil rights of so many, and one that federalism demands the hard work of our AGs, DAs, and all of us.

The post The New Civil Rights “Backstop”: How DAs and AGs Can and Must Investigate ICE Abuses appeared first on Just Security.

The most recent DHS policy is #2. The most recent DOJ policies are #3-4, and the most recent CBP policy is #5.

1. General Accountability Office (GAO), Law Enforcement: DHS Should Strengthen Use of Force Data Collection and Analysis (Jul 24, 2023) [GAO-23-105927]

2. Department of Homeland Security, Secretary Alejandro N. Mayorkas, Update to the Department Policy of the Use of Force (Feb. 6, 2023) [Policy Statement 044-05 (Revision 1)]

III. General Principles
…
C. Use of Safe Tactics

1. DHS LEOs should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of LEOs and the public,and that minimize the risk of unintended injury or serious property damage. DHS LEOs should also avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.
…

VI. Deadly Force
A. General Guidelines

1. …

a. DHS LEOs may use deadly force only when necessary, that is when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person.
b. Fleeing Subjects: Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape.

…

B. Discharge of Firearms
…
2. Moving Vehicles, Vessels, Aircraft, or other Conveyances

a. DHS LEOs are prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy. Before using deadly force under these circumstances, the LEO must take into consideration the hazards that may be posed to law enforcement and innocent bystanders by an out-of-control conveyance.

3. Department of Justice Manual, Policy On Use Of Force, 1-16.00 – 1-17.000 (updated July 2022)

4. Department of Justice, Attorney General Merrick Garland, Department’s Updated Use-of-Force Policy (May 20, 2022)

DEADLY FORCE

I. Law enforcement officers and correctional officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.

A. Deadly force may not be used solely to prevent the escape of a fleeing suspect.
B. Firearms may not be discharged solely to disable moving vehicles. Specifically, firearms may not be discharged at a moving vehicle unless: (1) a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or (2) the vehicle is operated in a manner that threatens to cause death or serious physical injury to the officer or others, and no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle. Firearms may not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force.

5. Customs and Border Patrol, Use of Force Policy (January 2021) [4500-002A]

Chapter 1: General Guidelines
…
C. Use of Safe Tactics
…
2. Except where otherwise required by inspections or other operations, Authorized Officers/Agents should avoid standing directly in front of or behind a subject vehicle. Officers/agents should not place themselves in the path of a moving vehicle or use their body to block a vehicle’s path.
3. Authorized Officers/Agents should avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.

6. Customs and Border Patrol, Use of Force – Administrative Guidelines and Procedures Handbook Law Enforcement Safety and Compliance Directorate Operations Support (January 2021) [4500-002B]

7. Department of Homeland Security Acting Deputy Secretary Claire M. Grady, Department Policy on the Use of Force (Sept, 7, 2018) [Policy Statement 044-05]

III. General Principles
…
C. Use of Safe Tactics

DHS LEOs should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of LEOs and the public, and that minimize the risk of unintended injury or serious property damage. DHS LEOs should also avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.
…

VI. Deadly Force

A. General Guidelines
…

2. A DHS LEO may use deadly force only when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person.

a. Fleeing Subjects: Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape.

B. Discharge of Firearms
…
2. Moving Vehicles, Vessels, Aircraft, or other Conveyances

a. DHS LEOs are prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy. Before using deadly force under these circumstances, the LEO must take into consideration the hazards that may be posed to law enforcement and innocent bystanders by an out-of-control conveyance.

8. Customs and Border Patrol Chief Michael J. Fisher, Use of Safe Tactics and Techniques (Mar. 7, 2014)

Directive

In order to lessen the likelihood of deadly force situations and reduce the risk of injury or death to agents and others, I am implementing the following directive effective immediately, which clarifies existing guidelines contained in the CBP Use of Force Policy:

(1) In accordance with CBP’s current Use of Force policy, agents shall not discharge their firearms at a moving vehicle unless the agent has a reasonable belief, based on the totality of the circumstances that deadly force is being used against an agent or another person present; such deadly force may include a moving vehicle aimed at agents or others present, but would not include a moving vehicle merely fleeing from agents. Further, agents should not place themselves in the path of a moving vehicle or use their body to block a vehicle’s path.

9. Department of Homeland Security, Office of Inspector General Charles K. Edwards, CBP Use of Force Training and Actions To Address Use of Force Incidents (September 2013) (Redacted) [OIG-13-114 Revised]

10. Police Executive Research Forum, U.S. Customs and Border Protection Use of Force Review (February 2013) [PERFReport] (Release May 30, 2014)

Note-1: Not publicly available is the CBP’s 23-page internal response, which the LA Times obtained.
Note-2: See ACLU’s Freedom of Information Act Complaint (May 22, 2014)
Note-3: For the importance of this report, see my analysis on Substack and YouTube.

11. Customs and Border Patrol, Use of Force Policy Handbook (October 2010) (first version) [HB 4500-01B]

Note: The Handbook states that “This Policy supersedes the U.S. Customs Firearms and Use of Force Handbook (CIS HB 4500-01A) dated March 2003; the U.S. Customs and Border Protection Interim Use of Force and Firearms Guidelines dated October 11, 2004; the INS Firearms Policy dated 19 February 2003; the U.S. Customs Firearms and Use of Force Training Policy (CD 4510-017A ) dated December 17, 2001; the 24 Hour Carry of Firearms by Office of Field Operations Personnel (ENF-3-FO RDJ) dated March 3, 2000; and the U.S. Immigration and Customs Enforcement Interim Firearms and Use of Force Policies dated July 7, 2004 (as they applied to CBP components transferred from U.S. Immigration and Customs Enforcement).”

The post DHS, DOJ and Customs & Border Patrol Policies: Use of Deadly Force and Moving Vehicles appeared first on Just Security.

Originally published Jan. 21, 2025, and frequently updated.

A. Resources

Tracker: Legal Challenges to Trump Administration Actions 

B. “What Just Happened” Series

Mark Nevitt, Trump, the National Guard, and the District of Columbia: What You Need to Know (Aug. 18, 2025)

Kathleen Claussen, What Just Happened: The Tariff Litigation Advances (Jun. 4, 2025)

Chiraag Bains, What Just Happened: The Trump Administration’s Dismissal of Voting Rights Lawsuits (May 27, 2025)

Dani Schulkin, Tess Bridgeman and Andrew Miller, What Just Happened: The Trump Administration’s Reorganization of the State Department – and How We Got Here (Apr. 22, 2025)

Stefanie Feldman, What Just Happened: The Trump Administration Repealed Zero Tolerance Policy for Rogue Gun Dealers (Apr. 15, 2025)

Kathleen Claussen, What Just Happened: The Trump Administration’s Latest Moves on Tariffs (Apr. 3, 2025)

Ahilan Arulanantham and Adam Cox, Explainer on First Amendment and Other Legal Issues in Deportation of Pro-Palestinian Student Activist(s) (Mar. 12, 2025)

Brett Holmgren, What Just Happened: Security and Foreign Policy Implications of Pausing Intelligence Sharing with Ukraine (Mar. 6, 2025)

Nicholas Bednar, What Just Happened: Musk-OPM Send Email to Federal Employees Asking for Five Accomplishments (Feb. 22, 2025)

Roderick M. Hills, What Just Happened: Purges at the DOJ and FBI – How Do and Don’t the Civil Service Laws Apply (Feb. 14, 2025)

Alex Finley, What Just Happened: Security Implications of Trump’s Efforts to Trim the CIA Workforce (Feb. 7, 2025)

Jonathan Hafetz and Rebecca Ingber, What Just Happened: At Guantanamo’s Migrant Operation Center (Feb. 6, 2025)

Kathleen Claussen, What Just Happened: New Tariffs on Products from Mexico, Canada, and China (Feb. 5, 2025)

Tess Bridgeman, What May Be About to Happen: Can the President Dissolve USAID by Executive Order? (Feb. 1, 2025)

Brad Brooks-Rubin, What Just Happened: Trump’s Termination of West Bank Settler Sanctions (Jan. 30, 2025)

William Banks, What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities (Jan. 29, 2025)

Ilya Somin, What Just Happened: The “Invasion” Executive Order and Its Dangerous Implications (Jan. 28, 2025)

Tom Ellison, What Just Happened: Trump’s Executive Actions on Environment and Implications for US Climate Security (Jan. 24, 2025)

Ahilan Arulanantham, What Just Happened: Sanctuary Policies and the DOJ Memo’s Empty Threat of Criminal Liability (Jan. 23, 2025)

Andrew Weissmann, What Just Happened: What Trump’s Hobbling Privacy Oversight Board Portends for Exercise of Surveillance Powers (Jan. 22, 2025)

Justin Hendrix, What Just Happened: Trump’s Announcement of the Stargate AI Infrastructure Project (Jan. 22, 2025)

Tom Joscelyn, What Just Happened: Trump’s January 6 Pardons and Assaults on Law Enforcement Officers By The Numbers (Jan. 22, 2025) 

Mark Nevitt, What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border (Jan. 21, 2025)

Tess Bridgeman and Rebecca Hamilton, What Just Happened: With ICC Sanctions (Jan. 21, 2025)

Sue Biniaz, What Just Happened: Withdrawing from Paris and other International Environmental Agreement Actions (Jan. 21, 2025)

C. Analysis and Perspectives

Elizabeth Goitein, Trump v. Illinois: A Narrow Supreme Court Decision with Broad Implications (Jan. 9, 2026)

Harold Hongju Koh, Bruce Swartz, Madeline Babin, Saavni Desai, Samantha Kiernan, Ananya Agustin Malhotra, Pete Nelson, Jake Reagan, Summia Tora and Julian Watrous, A SCOTUS Bench Memo for the Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext (Nov. 3, 2025)

Kelsey Merrick, The Use of Tariffs to Raise Revenue is a Choice for Congress, not the President (Nov. 3, 2025)

Thomas E. Brzozowski, How Designating Antifa as a Foreign Terrorist Organization Could Threaten Civil Liberties (Oct. 27, 2025)

Cathy Buerger, Repression as Rescue: The Authoritarian Logic of Trump’s Early Executive Orders (Sept. 25, 2025)

Himamauli Das, Rethinking IEEPA Accountability and Oversight (Sept. 18, 2025)

Conner Bender, America’s Missile Shield Raises Legal and Cybersecurity Concerns (Aug. 27, 2025)

Devika Hovell, Raising the Cost of U.S. Coercion Against the ICC (Aug. 26, 2025)

Jordan Ascher, The APA Authorizes “Universal” Stays of Agency Action Under 5 U.S.C. § 705 (Aug. 22, 2025)

Andrew Miller and Kelly L. Razzouk, Save the PMF Program or Risk Losing a Generation of Public Servants (Aug. 1, 2025)

Michael Schiffer, Congress Shrinking from the World: the Constitution’s Article I in the Shadow of Trump 2.0 (July 23, 2025)

Ryan Goodman, Understanding DHS’s and ICE’s New Powers in Comparative Perspective (July 21, 2025)

Samuel Estreicher and Andrew Babbitt, Court of International Trade’s Flawed Ruling in Striking Down Trump’s Tariffs (July 14, 2025)

Lisa Larrimore Ouellette, The Trump Administration’s Multi-Front Assault on Federal Research Funding (July 9, 2025)

Bruce Swartz, Will to Resist: What Dartmouth Teaches Harvard About Protecting American Freedom (July 7, 2025)

John Lewis and Jordan Ascher, Pathways to “Universal” Relief after Trump v. CASA (July 3, 2025)

Harold Hongju Koh, Alan Charles Raul and Fred Halbhuber, After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions (June 30, 2025)

Rebecca Hamilton, The Trump Administration’s Use of State Power: Keeping Track of the Big Picture (updated June 30, 2025)

Ilya Somin, Nondelegation and Major Questions Doctrines Can Constrain Power Grabs by Presidents of Both Parties (June 26, 2025)

Elizabeth Goitein, Federal Troops in Drug Raids Outside of Los Angeles: An Alarming Escalation (June 25, 2025)

Ryan Goodman and Steve Vladeck, The Posse Comitatus Act Meets the President’s “Protective Powers”: What’s Next in Newsom v. Trump  (June 20, 2025)

Adam Grogg and John Lewis, The Legal Defects in the Trump Administration’s Attempts to Deregulate Without Notice and Comment (Jun. 17, 2025)

Rachel Levinson-Waldman and Melanie Geller, How DHS’s New Social Media Vetting Policies Threaten Free Speech (Jun. 17, 2025)

Cathy Buerger, Unequal Before the Law: How Trump’s Death Penalty Order Codifies Dangerous Speech (Jun. 6, 2025)

Suzanne Summerlin, Too Big to Be Lawful: A Federal Court Halts Mass Layoffs Across the Civil Service (Jun. 3, 2025)

Kristin A. Collins, Gerald Neuman and Rachel E. Rosenbloom, Another Reason Trump’s Birthright Citizenship Order is Unlawful (May 15, 2025)

Mark Nevitt, The New “National Defense Area” at the Southern Border: What You Need to Know (Apr. 29, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Enforce the Law-Firm Deals (Apr. 28, 2025)

Paul M. Barrett, Justice Department Fails to Address Central Point in VOA Case (Apr. 24, 2025)

Ahilan Arulanantham, Deportation to CECOT: The Constitutional Prohibition on Punishment Without Charge or Trial (Apr. 23, 2025)

Aadhithi Padmanabhan, The Fox TV Problem with Deporting International Students (Apr. 21, 2025)

John Mikhail, Birthright Citizenship and DOJ’s Misuse of History in Its Appellate Briefs (Apr. 18, 2025)

Paul M. Barrett, Unpacking the Voice of America Litigation (Apr. 10, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Issue Bills of Attainder (Apr. 9, 2025)

Francisco Bencosme and Michael Schiffer, America’s Absence in Myanmar’s Early Earthquake Response: A Moral and Strategic Failure (Apr. 4, 2025)

Marty Lederman, Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court (Apr. 3, 2025)

Stephanie Psaki and Beth Cameron, Dropping U.S. Biodefenses: Why Cuts to Federal Health Agencies Make Americans Less Safe (Apr. 3, 2025)

Edgar Chen and Chris M. Kwok, The Trump Administration’s 14th Amendment Retcon: ‘Wong Kim Ark’ Does Not Limit Birthright Citizenship (Mar. 28, 2025)

Mary B. McCord, Dissecting the Trump Administration’s Strategy for Defying Court Orders (Mar. 25, 2025)

Rebecca Hamilton, The Imperative of Solidarity in Response to Assaults on Legal Services, Universities, and Independent Media (Mar. 24, 2025)

Andrew Weissmann, The New “Blacklists” Work When Law Firms Stay Silent (Mar. 24, 2025)

Katherine Yon Ebright, The Courts Can Stop Abuse of the Alien Enemies Act – The Political Question Doctrine is No Bar (Mar. 20, 2025)

Rebecca Ingber and Scott Roehm, The Trump Administration’s Recent Removals to El Salvador Violate the Prohibition on Transfer to Torture (Mar. 20, 2025)

Mark Pomar, Trump Move to Eliminate VOA, RFE/RL Ignores Lessons of Global Power (Mar. 20, 2025)

Jean Garner, Journalists Who Took Risks for US-Funded Broadcasters Threatened Anew by Trump Shutdown (Mar. 18, 2025)

Ambassador Daniel Fried, The US Government’s Self-Harm in Killing Radio Free Europe/Radio Liberty (Mar. 17, 2025)

Faiza Patel, U.S. AI-Driven “Catch and Revoke” Initiative Threatens First Amendment Rights (Mar. 18, 2025)

Steve Vladeck, 5 Big Questions in the Alien Enemies Act Litigation (Mar. 16, 2025)

Noor Hamadeh and David McKean, Suspension of FCPA Enforcement Is Bad for U.S. and Global Business (Mar. 13, 2025)

Brian O’Neill, The President’s Declassification Power is a Double-Edged Sword (Feb. 28, 2025)

Michael Schiffer and Anka Lee, Trump’s China Tariff Now Treats Hong Kong the Same as the Mainland, a First in US Policy (Feb. 27, 2025)

Bill Frelick, The Racial Twist in Trump’s Cutoff of Refugee Admissions (Feb. 27, 2025)

Daniel Jacobson, The Trump Administration Cannot Use Award Terms and Conditions to Impound Funds (Feb. 24, 2025)

Mark Nevitt, How the Pentagon Personnel Firings Threaten Our Apolitical Military (Feb. 24, 2025)

Brian Finucane, U.S. Military Action in Mexico: Almost Certainly Illegal, Definitely Counterproductive (Feb. 20, 2025)

Tobias Barrington Wolff, The Attempt to Purge Trans Members from the Armed Services (Feb. 19, 2025)

Elizabeth Goitein and Katherine Yon Ebright, Trump’s Doubly Flawed “Invasion” Theory (Feb. 19, 2025)

Seth Binder, Sheridan Cole, and Haydn Welch, The Disastrous Costs of the Foreign Foreign Aid Freeze on US Interests in the Middle East and North Africa (Feb. 14, 2025)

Laura Booth, Can the President Dismantle the Department of Education by Executive Order? (Feb. 14, 2025)

Scott Busby, Freezing Support to Democracy and Human Rights Activists Undermines US Interests (Feb. 13, 2025)

Laura Thornton, Supporting Freedom and a Foreign Aid Freeze are Incompatible – But Perhaps the Point? A Case Study (Feb. 13, 2025)

Donell Harvin, The Need for Course Correction: The Risks of Treating Drug Cartels as Terrorist Threats (Feb. 12, 2025)

Winona Xu, As Sexual Violence Surges in Goma, US Aid Remains Crucial (Feb. 12, 2025)

16 US Human Rights Experts, Current and Former Members of UN Bodies, “The Trump Administration’s Attacks on International Law and Institutions”: Public Statement of American Human Rights Experts, Current and Former Members of UN Bodies (Feb. 10, 2025)

Simon Lomax, Greg Clough, Morgan Bazilian, Restarting US LNG Permitting Brings Geopolitical Benefits and the Potential for Climate Progress (Feb. 10, 2025)

Rebecca Hamilton, Connecting the Dots: Trump’s Tightening Grip on Press Freedom (Feb. 6, 2025)

Rachel Levinson-Waldman, The Dangerous Sweep of Trump’s Plan to Designate Cartels as Terrorist Organizations (Feb. 5, 2025)

Marty Lederman, The Most Indefensible Aspects of DOJ’s Briefs in the Birthright Citizenship Cases (Feb. 4, 2025)

Suzanne Summerlin, Federal Employee Rights: What Probationary Employees Need to Know (Jan. 31, 2025)

Faiza Patel, Trump’s Executive Order on Foreign Terrorists: Implications for the Rights of Non-Citizens (Jan. 31, 2025)

Sara Zdeb, The Real Reason Trump’s Purge of Career DOJ Officials Should Alarm You (Jan. 30, 2025)

Suzanne Summerlin, Beware the “Deferred Resignation” Offer: A Legally Dubious Proposal for Federal Employees (Jan. 29, 2025)

Stuart Gerson, Understanding Trump’s Choice for FBI Leadership in Light of the “Weaponization of the Federal Government” Executive Order (Jan. 29, 2025)

Adam Cox and Trevor Morrison, Trump’s Dictatorial Theory of Presidential Power – What the Executive Orders, in the Aggregate, Tell Us (Jan. 28, 2025)

Ambassador Donald Steinberg, `Elections Have Consequences’: Trump and Rubio’s Foreign Aid Halt Will Hit the World’s Most Vulnerable (Jan. 28, 2025)

Dafna H. Rand, Stopped Security Assistance: From Counter-Narcotics to Combating Human Trafficking Programs (Jan. 28, 2025)

Andrew Weissman, Why has the Trump Justice Department Not Moved to Dismiss the Case Against Trump’s Co-Defendants in the FLA Classified Documents Case? (Jan. 28, 2025)

Michael Schiffer, Stop-Work Order on US Foreign Aid Puts China First and America Last (Jan. 27, 2025)

Ambassador (Ret.) Dennis Jett, Deprofessionalizing the State Department Is a Threat to National Security (Jan. 24, 2025)

Jean Galbraith, The Legal Problem with Trump’s WHO Order: The US Cannot Withdraw Until It Pays Its Dues (Jan. 23, 2025)

Alex Abdo, A Free Speech View on the “Free Speech” Executive Order (Jan. 21, 2025)

Xiangnong (George) Wang, President Trump’s Attempt to “Save” TikTok is a Power-Grab that Subverts Free Speech (Jan. 21, 2025)

“What Just Happened” Podcast Series

David Aaron, Brian Netter and Mark Nevitt, Federalization of DC Law Enforcement, Legal Authorities and Updates (Aug. 20, 2025)

David Aaron, Carrie Cordero and Donell Harvin, Federalization of Law Enforcement in Washington DC (Aug. 14, 2025)

David Aaron and Steven Cash, The Budget Bill and the Future of DHS and ICE (July 18, 2025)

Chiraag Bains, Dani Schulkin and Maya Nir, Dismissal of Voting Rights Lawsuits (June 2, 2025)

Ambassador Daniel Fried, Dafna H. Rand, Michael Schiffer, Michael Hanna, Rachel Goldbrenner and Maya Nir What’s Next for U.S. Diplomacy and Foreign Assistance (May 19, 2025)

Ryan Goodman, Tom Joscelyn, Mary B. McCord, Paras Shah and Clara Apt, Politicization and Weaponization of the Justice Department in the Second Trump Administration (Mar. 6, 2025)

David Aaron, Kevin Carroll, Paras Shah and Clara Apt, CIA Officers’ Lawsuit at Intersection of DEI and National Security (Mar. 4, 2025)

David Aaron, Tess Bridgeman and Suzanne Summerlin, Understanding Federal Employee Rights (Feb. 18, 2025)

David Aaron, Tess Bridgeman, Ryan Goodman and Mark Nevitt, Potential U.S. Military Domestic Deployment for Immigration Enforcement (Jan. 28, 2025)

Steve Vladeck, David Aaron, Tess Bridgeman and Ryan Goodman, Trump’s Immigration Executive Orders (Jan. 22, 2025)

IMAGE: President Donald Trump signs executive orders in the Oval Office on January 20, 2025 in Washington, DC. Trump takes office for his second term as the 47th president of the United States. (Photo by Anna Moneymaker/Getty Images)

The post Collection: Just Security’s Coverage of Trump Administration Executive Actions appeared first on Just Security.

Her stated reasons for spiking the segment exhibit a fundamental misunderstanding of the government’s legal case against the alleged Tren de Aragua (TdA) gang members. Indeed, as fairly recent guests on the show, we would be shocked if the multiple layers of 60 Minutes fact checkers and legal reviewers would get anything wrong. But Weiss did.

We now know the opening lines of the 60 Minutes segment. “The White House claimed the men were terrorists, part of a violent gang, and invoked a centuries-old wartime power saying it allowed them to deport some men immediately, without due process.” That’s correct.

 In an email to staff on Sunday explaining her rationale, Weiss claimed that they “need to do a better job of explaining the legal rationale by which the administration detained and deported these 252 Venezuelans to CECOT.”

Weiss continued:

 It’s not as simple as Trump invoking the Alien Enemies Act and being able to deport them immediately. And that isn’t the administration’s argument. The admin has argued that in court that detainees are due “judicial review” – and we should explain this, with a voice arguing that Trump is exceeding his authority under the relevant statute, and another arguing that he’s operating within the bounds of his authority. There’s a genuine dispute here.…

 There are several problems with Weiss’s take. Putting our point more strongly, if 60 Minutes had “explained this” as Weiss described they should, the segment would have included false or highly misleading information.

(1) “The admin has argued that in court that detainees are due ‘judicial review’ – and we should explain this”

Contrary to Weiss’s stated understanding, the administration has argued that the men detained and sent to CECOT under the Alien Enemies Act (AEA) are not due “judicial review.” And indeed they were not provided with judicial review.

On Mar. 14, Attorney General Pam Bondi issued “Guidance for Implementing the Alien Enemies Act.” A subsection is captioned: “No entitlement to hearings, appeals, or judicial review of removal order.” It states unequivocally that “[a]n alien determined to be an Alien Enemy and ordered removed under the Proclamation and 50 U.S.C. § 21 is not entitled to … judicial review of the removal order in any court of the United States” (emphasis added) 

That is, Bondi stated that those detained and removed from the United States under the AEA are “not entitled” to judicial review – the opposite of what Weiss claimed in her email. Notably, Bondi’s memorandum coincided with President Donald Trump’s invocation of the AEA; her interpretation was the administration’s first attempt to explain its position regarding “judicial review.” 

What’s more, the DOJ directly told at least some of the men that they were not entitled to judicial review. The written notice that they were being summarily removed under the AEA stated: “You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal” (emphasis added).

Indeed, the men sent to the CECOT torture prison clearly were not provided with judicial review, so it does not matter what the administration argued in a court of law. Nor were the men provided any form of due process, even though they had the right to seek habeas relief. That is the true crux of the matter.

The administration took even more extreme positions before the courts. In April, a unanimous Supreme Court held that individuals removed under the AEA are constitutionally entitled to seek habeas (more on the decision below). The Justice Department later conceded that the administration “is” required (note the present tense) to provide detainees with notice and opportunity to seek habeas relief (p. 34). However, the DOJ also took the audacious view in court that the Supreme Court’s ruling applied only prospectively – not to the men who had been removed to CECOT, the same people at the center of the 60 Minutes segment. Judge Boasberg described that DOJ argument as “roundly rejected.” He wrote: “If the Due Process Clause now entitles a party to certain procedures, it always has” (emphasis in original). 

It should be clear to any close observer of the facts and the litigation that Weiss’s depiction of the Government’s position was deeply flawed. 

(2) “we should explain this, with a voice arguing that Trump is exceeding his authority under the relevant statute, and another arguing that he’s operating within the bounds of his authority”

Whether Trump exceeded his authority under the relevant statute is largely, if not completely, irrelevant. A version of the canceled segment has been posted online. And the point Weiss raises is a second-order question not at issue in the 60 Minutes segment (e.g., whether there is an “invasion” or “war” for purposes of the AEA, and whether the president has therefore exceeded his authority under the statute). The first-order question – whether the men were summarily deported in violation of their due process rights under the U.S. Constitution – is stated at the outset of the segment.

(3) “There’s a genuine debate here.”

No, there’s not. 

On Monday, Chief Judge Boasberg ruled that the “purpose” of the Trump administration’s “hasty removal” of the men deported to El Salvador was “evident” – that is, it “was certainly intended to deprive them of an opportunity to secure prior judicial review.” Boasberg’s finding contradicts Weiss’s blanket statement that the administration has argued in court that the detainees were due judicial review. Even if the administration had made that argument, the administration did not provide the detainees with such an opportunity – and that is what matters.

But Weiss is wrong about the government position in litigation as well. As Boasberg notes, the administration “conceded [that] Plaintiffs had no opportunity to contest their designation as TdA members prior to removal” (emphasis added). 

Almost as if he were in conversation with Weiss’s misstatements the day before, Boasberg added:

At various points in this litigation, the Government itself has not even contested that the detainees who now make up the CECOT class received inadequate process prior to their removal. See generally July 24 Hr’g Tr. (Government not contesting Court’s finding on merits of due-process violation); Gov. Opp. PI (same); May 7 Hr’g Tr. at 29:24–31:21. There can be no genuine dispute about this question now. (emphasis added)

Indeed, Boasberg wrote on the foundation of the U.S. Supreme Court ruling in April that “‘[i]t is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.” The Justices added that “AEA detainees must receive notice … that they are subject to removal under the Act” and “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” The following month, the Supreme Court ruled again that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”  The men removed to CECOT did not receive even that amount of process. 

As immigration law expert Aaron Reichlin-Melnick wrote on social media, “Weiss is making up a ‘debate’ that has already been settled.”

We return to the opening lines of the canceled 60 Minutes segment, in which the narrator states a simple truth – namely, that the administration sent more than 200 men to CECOT “without due process.” There is no material dispute over this fact. Indeed, Weiss does not even dispute that. What she does affirmatively claim, however, is not grounded in the realities of the Government’s actual legal arguments or the facts of the cases.

The post Fact Checking Bari Weiss: The Stated Reasons for Spiking 60 Minutes “Inside CECOT” appeared first on Just Security.

This memorandum analyzes the Department of Justice, Office of Legal Counsel’s memorandum on judge advocates serving as immigration judges, including implications with respect to the Posse Comitatus Act.

The mock operational legal review follows:

The post Hypothetical Legal Review on Judge Advocates Serving as Immigration Judges appeared first on Just Security.

Immigration judges are typically career civil employees who are appointed by the Attorney General to serve as administrative judges. Assigning JAGs these positions may well violate the Posse Comitatus Act, a key law that prohibits the military from “executing” civilian laws. Besides being against the law, the appointments are a bad idea. They breach the foundational norm separating military authority from civilian governance. It would be as if active-duty military officers were assigned to serve as tax court judges or administrative law judges, proposals that would immediately raise constitutional concerns.

The plan to reassign hundreds of JAGs also removes them from the military where they are needed to provide critical legal advice, including on the deployment of the National Guard to U.S. cities and the use of lethal force, including in the Caribbean. Despite the Trump administration’s efforts to sideline military lawyers (including firing the top uniformed JAGs in February), the counsel provided by JAGs on complex legal matters is more important than ever. Congress, which has the constitutional authority to make rules for the “Government and Regulation of land and naval forces” should closely scrutinize any effort to hollow out the JAG Corps.

Two Plans to Turn Military Lawyers Into Immigration Judges

The administration has floated two options for reassigning JAGs. One plan was announced by Secretary of Defense Pete Hegseth and involved the use of JAGs serving as a federal military force. Separately, Florida Governor Ron DeSantis announced a plan involving a small number of Florida National Guard JAGs. By regulation, temporary immigration judges are subject to the management and oversight of the chief immigration judge at the DOJ. Still, it is unclear if these newly assigned JAGs will act in an entirely civilian capacity or if they will continue to function under their usual military chain of command. Although many details remain unclear, we have an understanding of the broad outlines of the potential plans, along with the significant concerns they raise about the legality of the JAGs’ assignments and anticipated work.

Plan #1: Assigning Active-Duty and Reserve JAGs as Immigration Judges

The first option, which has already begun, is to reassign active-duty and reserve JAGs to work as immigration judges. News of the plan broke in early September, just days after the DOJ dropped the requirement that temporary immigration judges be either administrative law judges or retired DOJ immigration adjudicators. Now, the DOJ allows “any lawyer” to serve as an immigration judge. This regulatory change skirted traditional notice-and-comment processes that would call for transparency and an opportunity for contemporaneous public comment. Instead, the new rule relied upon comments solicited 11 years ago during the Obama administration. At that time, the DOJ implemented a rule change permitting former immigration law judges and administrative law judges to serve as temporary immigration judges for renewable six-month terms. The Trump DOJ initiative goes much further, short-circuiting the administrative rulemaking process and paving the way for JAGs to be detailed as immigration judges.

This change in defining who is eligible to serve as an immigration judge is not a routine personnel revision, and, therefore, it should be closely scrutinized and subject to traditional notice and comment procedures. After all, allowing any lawyer–including JAGs–to serve as a temporary immigration judge, regardless of their qualifications, affects the due process rights of immigrants appearing before the court, who are no longer assured that the judges hearing their cases are versed in the complex legal specialty of immigration law. Further, although JAGs can serve as military judges presiding over courts-martial, they generally lack immigration law expertise and rarely have adjudicated civilian matters.

Plan #2: Assigning National Guard Members as Immigration Judges

The second reported plan involves calling up National Guard JAGs to work as immigration judges. In July, for example, President Donald Trump and DeSantis (himself a former Navy JAG) reportedly agreed to assign Florida National Guard lawyers to do just that. According to Florida’s Immigration Enforcement plan, these assignments would make only a small contribution to the effort to detail hundreds of JAGs as immigration judges: just nine field-grade National Guard members are suitable for service as immigration judges. In addition, to serve as immigration judges, Guard members would have to be activated and federalized under the command and control of the president, but the only way to do so is under 10 U.S.C. §12301(d), which requires the consent of the Guard member to be activated.

Under either plan, there are significant questions about the legality of the appointments, including whether they violate long-standing laws prohibiting JAGs from serving as civil law enforcement.

Violating the Posse Comitatus Act’s Plain Meaning

The appointment of JAGs to serve as immigration judges violates the Posse Comitatus Act (PCA). A “posse comitatus” is a Latin term used in British and American law to mean a group of people a sheriff mobilizes to suppress lawlessness. The PCA is a criminal law that dates to 1878, and bars any part of the federal military forces from being used as a posse comitatus, i.e., participating in civilian law enforcement. The statute, in full, states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Under the PCA, implied authority is not enough; the authority to execute the laws must be “expressly authorized by the Constitution or Act of Congress.” The JAG assignments fall within the PCA ban because immigration judges execute domestic law, and there is no express authorization for military lawyers to serve as immigration judges.

Despite its importance, the term “execute the laws” itself is not defined in statute and remains ambiguous. No case law squarely addresses whether immigration judges adjudicating immigration cases are “executing the law.” Nevertheless, even under a narrow reading of that term, JAGs serving as immigration judges would clearly “execute the law.”

Several decades ago, in United States v. Yunis, the Court of Appeals for the District of Columbia endorsed a leading jurisprudential test for analyzing PCA violations: the PCA prohibits activities that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” The lower court in Yunis provided a more detailed analysis of those terms that the appeals court effectively ratified, defining a regulatory power as one which “controls or directs,” a proscriptive power as one that “prohibits or condemns,” and a compulsory force as one which “exerts some coercive force.” As a result, all of those military actions are prohibited under the PCA as applied to civilians.

Although immigration judges are, by regulation, impartial arbiters of the law, both temporary and permanent immigration judges carry out activities that meet the Yunis standard. Immigration judges decide whether an immigrant has the legal right to remain in the United States or will be deported, and whether to keep someone in custody or release them from detention. While the JAGs serving as immigration judges may be in civilian attire and judicial robes, they are issuing rulings that effectively control the immigrant’s future in the United States, prohibit the immigrant from being released from custody, and coerce the immigrant through deportation orders. Immigration judges don’t just apply the law—they execute it. When a judge orders deportation, that’s not interpretation, it’s compulsion backed by state power. Under the Yunis precedent, that’s precisely what the PCA prohibits.

In August of 1986, then-Deputy Assistant Attorney General of the Office of Legal Counsel (OLC) Samuel Alito analyzed a proposal to assign Army JAGs to serve as Special U.S. Attorneys (SAUSAs) in the DOJ. In considering whether the assignments violated the PCA, Alito broadly interpreted “execution” of the law to encompass “the litigation of civil and criminal cases.” Immigration adjudication and decision-making¾which result in restrictions on liberty and the enforcement of applicable immigration laws that could lead to expulsion from the nation¾fall within this conception. In fact, Alito assumed without further analysis that the litigation of civil and criminal cases constituted “execution” of the law within the meaning of the PCA.

As Alito put it, the PCA was “intended to prevent persons subject to military law and discipline from directing commands to ordinary citizens.” Military lawyers serving as temporary immigration judges would have the ability to wield significant control over the lives of civilians, a power the PCA does not permit.

No Express Authorization

The only exception to the PCA’s prohibition on soldiers serving as civilian law enforcement is where the Constitution or Congress has “expressly authorized” them to do so. The Constitution does not include any express authorization that allows military officers to serve in civilian roles. There are many statutory exceptions to the PCA, but none expressly authorize the use of military lawyers as immigration judges in the DOJ.

The term “expressly authorized” is significant. Its inclusion was debated and discussed for several years before the PCA’s passage in 1878. The House Manager at the time said that inclusion of the word “expressly” was critical to prevent the use of the military where authority is only implied. During the back and forth between the Senate and the House on the PCA’s text, “expressly” was added in the final version, thus “restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.”

The Pentagon itself does not identify any exceptions that would permit assignment of JAGs as immigration judges. Its 2019 instruction governing interpretation of the PCA, titled “Defense Support of Civilian Law Enforcement Agencies,” lists 20 specific exceptions—including assignments as specific as the enforcement of fishery laws—but does not include any exceptions that even arguably include immigration adjudications. Even the so-called assignment statutes—10 USC §§ 806 and 973(b)(2)(B) – which allow military officers to support certain civil functions — are not considered by the military to be exceptions to the PCA. To be sure, the Trump administration could change how it interprets existing statutes and regulations, but such an interpretation is reviewable under the Administrative Procedure Act, and the court can set aside arbitrary or capricious changes that lack a reasoned explanation.

The omission of any reference to assignments to serve as immigration judges is evidence that the Deapartment of Defense does not consider such assignments to be exceptions to the PCA. If DOD doesn’t believe these are express exceptions, why should courts? Indeed, a court reviewing DOD’s newfound interpretation of a PCA exception is likely to apply administrative law principles to scrutinize this 180-degree interpretive turn, reviewing “the validity of [DOD’s] reasoning” and identifying its lack of “consistency with earlier and later pronouncements.”

Of note, in his 1986 OLC memo, Alito did not address whether the Title 10 provisions were an express exception to the PCA, but noted that the legality of using JAGs to carry out certain litigating functions at DOJ depended on certain factual circumstances. According to Alito, serious questions would arise under the PCA if, while assigned to DOJ, the military lawyers functioned under their usual military chain of command, were assigned on a part-time basis, or performed civilian functions along with their regularly assigned military duties (by working at a military installation, for example). Alito wrote that to minimize the risk of contravening the PCA, “military lawyers who are not functioning in an entirely civilian environment should not be used to perform any prosecutorial function that involves direct contact with civilians in a law enforcement context, such as the interrogation of witnesses or a personal appearance in court.”

In sum, the term “expressly” was fought over and included in the PCA’s text as a means to combat future attempts to allow the military to perform civil functions with only implied authority. The Pentagon has never interpreted the assignment statutes as express authorization to circumvent PCA restrictions, nor has it identified any other applicable exception.

To be sure, the Administration may attempt to avoid PCA prohibitions by detailing individual military members on a full-time basis to the Department of Justice under the supervision of civilian personnel—factors pointed out by Alito as a way to potentially sidestep the PCA in the context of assigning JAGs as Special Assistant U.S. Attorneys (SAUSAs). These factors were also highlighted in a just-released OLC memo providing legal cover for the detail.  But Alito made clear that such details should be scrutinized to determine whether the JAGs are truly independent from their military command, and they would have to be funded by DOJ – a significant constraint because the July funding bill capped funding at 800 judges total, and there are 685 on the bench today. How such an approach might apply to Immigration Judges is a novel question of law, and the exact details on how, exactly, the JAGs will be assigned, funded, and integrated into the Department of Justice have yet to be released.

Due Process Concerns

When JAGs are assigned as immigration judges, they remain subject to military law and discipline via the Uniform Code of Military Justice (UCMJ). Unlike military judges—who enjoy statutory insulation from command influence under Articles 26 & 37—JAGs assigned as immigration judges lack protections to shield their decisions from outside influence, thus creating an inherent conflict between judicial independence and command obedience.

First, under Article 26 of the UCMJ, only the senior Judge Advocates General of the Military Services may supervise military judges, and no one else may participate in their professional evaluation of their judicial performance. This carveout for military judges helps ensure judicial independence, insulating JAGs from external influence or pressure to decide a specific way. No such protection exists for JAGs serving as immigration judges, leaving them open to outside political pressure to support the administration’s mass deportation agenda. For example, JAGs serving as immigration judges lack any such protections and may well report to civilian bosses. These civilian bosses will have input on their professional evaluations. Imagine a JAG serving as an immigration judge who issues opinions that run contrary to the administration’s political agenda, angering his or her civilian bosses. A negative evaluation can sink an otherwise promising military career, creating an unworkable conflict of interest as JAGs attempt to balance career progression with commitment to due process and the rule of law.

Second, Article 37 of the UCMJ prohibits unlawful command influence of military justice proceedings, thereby ensuring independence and impartiality through the court-martial. Again, no statutory carveout exists to help insulate JAGs serving as immigration judges. Although unlawful command influence protections would not apply in immigration court, the threat of placing the thumb on the scale of deportation from senior officials is real and deeply problematic. Orders from their chain of command would have a high presumption of lawfulness¾only “manifestly illegal” orders must be disobeyed.

In light of the Trump administration’s focus on immigration enforcement and the clear executive branch preference to expedite deportation proceedings, JAGs serving as immigration judges are likely to feel outside pressure to favor the government’s view. They may even receive express pressure to rule a certain way, raising significant questions as to whether immigrants appearing before them will receive a fair hearing consistent with their Due Process rights.

Even the appearance of partiality could have significant consequences. The Court of Appeals for the District of Columbia vacated more than two years of orders in a capital case against a man charged with orchestrating a series of bombing plots for al-Qaeda because the military judge overseeing the case failed to disclose that he had applied for an immigration position at the DOJ. The court found that the application to the DOJ, while serving as a military judge, created a “disqualifying appearance of partiality.” The same could happen here, undermining the administration’s goal of reaching finality.

Sidelining JAGs From Their First Priority

Finally, detailing JAGs as immigration judges takes those lawyers away from critical military work while demanding familiarity with the complex legal field of immigration law.

Since Trump took office in January, JAGs who have served for decades through different administrations, have witnessed their most senior uniformed leaders fired. Meanwhile, in the Defense Department, military lawyers are being sidelined from providing legal advice on operational decisions. The loss of 600 JAGs to immigration courts would be a stunning loss of expertise at a time when military legal advice is vital. With fewer JAGs, there is less candid and non-partisan legal advice, creating an environment that allows legally suspect behavior.

Second, assigning JAGs without immigration experience to serve as immigration judges is unfair to both the JAGs and to the immigrants appearing before the court. Immigration law is a notoriously complex, nuanced, and sophisticated area of law. Although JAGs have expertise in military justice, operational law, and laws of war, immigration law has never been a core specialty or practice area for JAGs. Many JAGs assigned as immigration judges will be reading immigration statutes, regulations, and case law for the first time. While we do not doubt that these military attorneys will do their very best despite the lack of subject matter expertise, immigrants before the court are entitled to competent judges who are well-versed in immigration law.

Conclusion

The unprecedented assignment of “soldiers in robes” to oversee civilian courts blurs the line between military and civilian functions. This intrusion into civilian affairs undermines the public’s trust and confidence in the military¾a hard-earned trust that has been slowly rebuilt since the Vietnam War.

The stakes could not be higher. After all, opposition to military entanglements in civilian affairs was a bedrock principle to the United States’ founding, with the Declaration of Independence lamenting the king’s willingness to “render the Military independent of and superior to the Civil Power.”

This is not about the qualifications or credentials of JAGs. We know that most military lawyers – like most immigration judges – will do their best to remain impartial and ethical under trying circumstances, even without sufficient training and legal protections. But these moves create unnecessary risk.

DOJ should return to its 2014 requirements for temporary immigration judges and require immigration or adjudicatory experience – or both – for temporary immigration judges. To ensure due process for immigrants appearing in immigration court and to protect JAGs from prosecution under the PCA, DOJ should immediately take active duty JAGs off the immigration bench. Finally, the courts must resist any attempt to normalize military participation in civilian adjudications. Preserving this line is essential not only for legal compliance but for maintaining the trust that underpins a healthy civil-military balance.

The post Soldiers in Robes: Why Military Lawyers Can Not and Should Not Serve as Immigration Judges appeared first on Just Security.

Since September 9, Midway Blitz has rolled out a now familiar playbook: arrests at home improvement stores, detentions of individuals and families based on “how they look,” aggressive and violent actions targeted at protestors, arrests of journalists, and even the deployment of drones, helicopters, and border patrol boats to the Chicago River. The administration’s campaign has reportedly resulted in almost 3,000 arrests.

In response, Chicago Mayor Brandon Johnson issued an executive order in early October that reaffirmed the city’s commitment to protecting immigrants by preventing ICE from using public property as a base for civil immigration enforcement, such as city-managed or owned vacant lots, garages, or parking areas. Illinois governor J.B. Pritzker called on ICE to pause immigration enforcement for Halloween in reaction to agents tear gassing children during a neighborhood Halloween parade. Members of the Illinois congressional delegation, including Senators Dick Durbin and Tammy Duckworth, demanded briefings from DHS and ICE.

But Chicago and Illinois could go even further. The crackdown is not only against immigrants but also against activists supporting those immigrants. Sanctuary protections—the laws and regulations that limit cooperation with federal immigration officials and related law enforcement—give officials a lawful roadmap to supporting local protestors and protecting the public’s safety alike by choosing not to assist federal agents in targeting demonstrators.

Generally, sanctuary policies ensure access to public services, protect vulnerable communities, and preserve local autonomy by prohibiting police from assisting federal immigration agents. In Chicago, for example, these policies, like many others, restrict state and local officers from complying with ICE requests to detain people for immigration purposes, sharing individuals’ contact information, custody status, release date, or other private information with immigration agents, or allowing immigration agents to access their detention facilities or people in their custody. Chicago’s municipal code also prohibits local officers and public officials from disclosing an individual’s immigration status to federal agents unless specifically required to do so by law or authorized to do so by the individual in writing.

But these policies have also proved vulnerable and limited in their scope. In Washington, D.C., the local government sidestepped sanctuary policies during the federal government’s immigration crackdown due to federal pressure, and police cooperation contributed to a dramatic increase in immigration arrests stemming from minor violations. Earlier this summer, the city of Louisville, Kentucky, also caved to federal threats to cut funds and rescinded some immigrant protections. In Illinois, sheriffs provide local jail space for immigration detention and the state police have given ICE access to information about residents, in apparent violation of state law.

Moreover, sanctuary laws like those in Chicago only prohibit immigration-related assistance to ICE, leaving officials free to lend broader support to homeland security crackdowns, including against protestors. This is a major shortcoming. In the Chicago area, local police have collaborated with federal agents by jointly policing regular protests outside the Broadview ICE detention center, notably setting up designated protest areas behind barricades. On November 1, the Illinois State Police and several local agencies joined forces with federal agents to overwhelm a relatively small group of activists outside the Broadview facility. This direct support of ICE operations by local authorities has gone on for the last month.

Yet sanctuary policies are lawful and constitutionally protected. Cities and states are not obligated to assist federal agents in enforcing immigration law, nor are they required to deploy local police against demonstrators opposing those agents. Under the Tenth Amendment, local governments have the authority to decline cooperation with federal enforcement efforts that conflict with their own laws or priorities. In practice, that means that municipalities like Chicago can extend sanctuary protections beyond immigration contexts to shield protest activity, ensuring that local resources are not used to police peaceful demonstrators on behalf of federal agencies.

A federal judge in the Northern District of Illinois reaffirmed this principle this summer, dismissing the federal government’s lawsuit challenging the sanctuary policies of Chicago, Cook County, and Illinois. The court held that the Tenth Amendment  gives states the power to decline to cooperate with federal authorities. In its complaint—and in at least ten similar suits in other jurisdictions—the United States alleged that sanctuary policies violate the Supremacy Clause of the U.S. Constitution. The federal government’s central theory is that the sanctuary policies interfere with Congress’s desire for efficient immigration enforcement that involves collaboration with local governments, expressed in 8 U.S.C. § 1373.

Rejecting this argument, the district court joined every other federal district court to find that the federal law, which deals narrowly with “immigration status” information, ultimately does not explicitly supersede the state and local sanctuary policies at issue. The court found that the policies do not undermine the federal government’s goals set out in section 1373 because that law establishes entirely optional cooperation between federal immigration agents and states. In other words, the court affirmed that the law does not require collaboration between local police forces and federal agents and that Chicago’s sanctuary policies do not direct affirmative disruption of federal law enforcement. So even if local inaction may make immigration agents’ jobs harder, it is not against the law.

Moreover, the court affirmed that allowing Congress to dictate how state and local agencies operate would violate the Tenth Amendment’s anticommandeering doctrine, which holds that the federal government cannot direct state government action. That is precisely what the federal government has sought to do in its lawsuits and in its rhetoric about policing both immigrants and protestors since landing in the Chicago area.

Sanctuary policies like Chicago’s not only are legal, but they also serve a vital public safety purpose, an essential function of state and local police power. Multiple empirical studies confirm that sanctuary policies at worst have no impact on general crime rates and at best actually reduce them, for example by making it safer to report domestic violence. Other research shows that heightened immigration enforcement reduces the willingness of victims of domestic violence and other crimes to seek assistance, and creates incentives for employers to exploit immigrant workers.

Sanctuary policies also help mitigate those harms by encouraging trust between immigrant communities and local law enforcement. Chicago highlighted this in its defense against the government’s lawsuit, noting how its city council determined that requiring local police to enforce immigration law “would chill effective law enforcement because fear of deportation would lead witnesses and victims to avoid cooperation with police.” As Chicago explains, these sanctuary policies allow local police to remain focused on their core responsibilities while having no impact on the deportation of individuals with violent convictions—the so-called “worst of the worst” that ICE claims to target.

Illinois officials could build on these legal principles by choosing not to expend resources to help homeland security agents defend ICE facilities, for which thousands of federal agents are already available. In fact, they must do so in the face of dangerous, disingenuous White House directives that disparage opposition to federal immigration policy as terrorism. The Tenth Amendment’s anticommandeering doctrine allows local governments to extend sanctuary policies to prohibit the use of their police departments to counter protests near ICE facilities, shield Illinois’ information about protestors from access by the federal government, remove federal police and intelligence officers from local facilities that grant them easy access to data about residents, and otherwise prohibit the federal use of local resources in these operations. Simply refusing to block streets on behalf of ICE is another easy way to start.

* * *

Local governments must exercise their constitutional power, reaffirmed recently by the courts, to cut off cooperation with federal authorities that undermine their residents’ safety, rights, and trust.

The post Defending ‘Sanctuary’ Principles During the Chicago Crackdown 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.

* * * *

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.

* * * *

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.

For years private prison companies have been an important partner for ICE as the government carries out its immigration agenda. ICE contracts with corporations to build and run detention facilities and to transport undocumented individuals who are in custody. The two biggest private prison companies in the United States are CoreCivic and GEO Group. The companies are poised to expand their roles – as well as their profits – thanks to the new influx of funding.

As I noted last November, as we stood on the precipice of an explosion of mass detention, it is critical to acknowledge that if these corporations didn’t exist it would be difficult for the federal government to execute its plans. And when this giant infusion of funding for ICE ramps up the U.S. government’s capacity to detain, transport, and deport people, it will be difficult to dismantle even if future administrations seek to wind down this agenda. Potentially adding 10,000 new ICE detention officers, creating 50,000 or more detention beds, and adding fleets of vehicles such as buses and vans to the nation’s detention and removal operations will create an infrastructure that is unparalleled in this country. The funding creates vested interests for corporations that provide detention, transport, healthcare, and security services and some local communities that benefit from the associated jobs and tax dollars, making it even harder to dismantle.

Soaring Industry Profits

This month, the two largest private prison corporations reported significant profits during their second quarter earnings calls.

CoreCivic reported total revenue of $538.2 million during the company’s second quarter, an almost 10 percent increase from the same time period in 2024. GEO Group, ICE’s largest contractor, reported second-quarter revenue of $636.2 million, a 5 percent increase over the same time period last year.

CoreCivic CEO and Director Damon Hininger told investors during the Aug. 7 earnings call that the new budget bill is a “a pivotal moment for funding related to our industry.” Similarly, GEO Group Founder and Executive Chairman of the Board George Zoley told investors on their Aug. 6 call: “Given the intrinsic value of our assets and the unprecedented growth opportunities we anticipate will materialize over the balance of this year and next year, we believe that our current equity valuation offers an attractive opportunity for investors.”

Rising to Meet Demand

CoreCivic and GEO Group have both taken steps this year to increase detention capacity. The companies have signed contracts with the federal government to add additional beds to current detention facilities, in addition to signing new contracts with the federal government to reopen idle facilities. For example, since January, GEO Group has reactivated four facilities with a total of 6,600 beds for ICE. The company expects these four facilities alone to produce more than $240 million a year in revenue.

CoreCivic signed an agreement with ICE this year to re-open the South Texas Family Residential Center in Dilley, Texas, a 2,400-bed detention center constructed to house families. The facility was closed in 2024 after President Joe Biden phased out family detention in 2021. At the family detention center, fathers are usually separated from mothers and children. The company also reactivated the California City Immigration Processing Center to house ICE detainees. The facility has 2,560 detention beds. And in March, CoreCivic entered a preliminary contract with ICE to re-open a more than 1,000-bed facility in Leavenworth, Kansas, called the Midwest Regional Reception Center. The building is the site of a former federal prison.

CoreCivic reports that it has informed ICE that it has approximately 30,000 more beds that it can make available. Some of those beds – 13,400 – are across nine empty corrections and detention facilities. The rest of the capacity comes from adding more beds in facilities currently operating.

GEO Group is also advertising that it has almost 6,000 idle beds (meaning, beds across multiple facilities that are not currently in use by any state or federal agency) for ICE or the U.S. Marshals Service to use if needed. The company also has an additional 5,000 beds that can be created on a temporary or permanent basis at existing facilities.

GEO Group has also become a pivotal partner for the administration in transporting and ultimately removing people from the United States. GEO Group’s transportation subsidiary, GTI, is the largest provider of ground and air transportation for ICE. Geo Group expects that more removal flights could produce an additional $40 million to $50 million in annual revenue for GTI.

Local Pushback

Despite the expansion, some jurisdictions have pushed back on detention facilities opening in their cities and towns. For example, after a lawsuit filed by the city of Leavenworth, a Kansas court temporarily blocked CoreCivic from housing immigrant detainees at the Midwest Regional Reception Center because the company didn’t obtain a special use permit to open the facility. Many local residents have also voiced their opposition. Some residents oppose it in protest of the administration’s immigration agenda. Others remember chronic understaffing and dangerous conditions at the former CoreCivic facility on that site, as detailed in a report by the Justice Department’s Inspector General.

That local pushback comes despite the fact that the facility would be lucrative for Leavenworth, as CoreCivic has promised the city $1 million once the facility opens and additional annual payments of $250,000. The company also promised $150,000 to the police department.

Democratic leaders in New Jersey also publicly pushed back against GEO Group’s opening of Delaney Hall, a 1,000-bed detention facility that will be the largest immigration detention facility on the East Coast. Officials in Newark filed a lawsuit to try to stop the detention center from opening its doors, alleging that GEO Group was renovating the building without proper city permits. However, a July ruling by the U.S. Court of Appeals for the Third Circuit (concerning a different facility in the state) held that New Jersey cannot block private prison firms from entering into contracts with the U.S. government.

A Struggle to Provide Oversight

As it’s partnering with private companies to increase the nation’s immigration detention capacity, the Trump administration has also attempted to reduce oversight of detention facilities. The Department of Homeland Security (DHS) effectively eliminated the Office of the Immigration Ombudsman and the Office of Civil Rights and Civil Liberties, both of which performed critical oversight of immigration detention.

This summer, following the elimination of those oversight bodies, ICE denied numerous members of Congress access to detention facilities and field offices as they attempted to check on conditions for detainees — even though federal law provides members of Congress the legal right to do so. And just last week, 11 Democratic elected officials were arrested in Manhattan after they demanded access to cells in a federal building where ICE houses migrants. And members of Congress are pushing back. On July 30, a dozen members of the U.S. House of Representatives sued the Trump administration, seeking to ensure they are granted access to detention facilities, even without prior notice.

Congress has also previously considered ways to expand oversight and transparency of detention facilities, specifically of prisons and detention centers operated by private corporations. This legislation, the Private Prison Information Act, would increase the information private prison companies have to make public. It did not advance last year.

State oversight of ICE detention is limited, as oversight of these facilities has traditionally rested with DHS and the Government Accountability Office. But California offers a model for states to follow as federal oversight wanes. In 2017, California’s legislature enacted Assembly Bill 103. The law requires the state of California’s Department of Justice to review and report on conditions of confinement at immigration detention facilities through July 1, 2027. The state released a report this April (its fourth since the law was enacted) after visiting six privately-operated ICE immigration detention facilities in California. The report found that the facilities need significant improvements to adequately address the mental health needs of detainees. The facilities were deficient in implementing suicide prevention programs, and staff were found to use disproportionate force against individuals with mental health diagnoses. The facilities also failed to comply with their obligations to ensure that mental health conditions did not stop detainees from participating in their immigration legal proceedings.

Ethical Investment and the Private Prison Sector

Despite soaring profits and high returns for shareholders, some investors have walked away from these companies for ethical reasons. As I wrote about in my book, “Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration,” Columbia University became the first private college in the nation in 2015 to divest from private prisons. That same year, the University of California became the first public education system to divest its holdings in the industry when it announced it would sell its $25 million stake in GEO Group, CoreCivic, and G4S (a private security company that operates some private prisons across the globe). Dozens of other divestment campaigns steadily popped up across the country at a broad swath of universities and colleges. In 2019, eight major banks, including JPMorgan Chase and Bank of America, announced they would no longer provide financing to private operators of prisons and detention centers. And online tools now exist that help investors find information about which funds contain these stocks.

When the banks made that move in 2019, it was amid widespread protests of Trump immigration policies, particularly those focused on separating children from their families. Now, after widespread criticism from Republicans including President Donald Trump, some corporations have backtracked on many of their socially oriented policies, positions, and commitments that were politically popular just five years ago. And at least two banks, Bank of America and Wells Fargo, have started to work with the private prison sector again.

The outcome of recent litigation may eat into profits of companies that manage ICE detention centers. The full 9th U.S. Circuit Court of Appeals declined to reconsider a three-judge panel’s January ruling that held that the state minimum wage laws apply equally to all private employers in the state, regardless of their contractual arrangement with the federal government. GEO Group is now required to pay $23 million to Washington State and immigrant detainees who were paid $1 a day (rather than minimum wage) to participate in the company’s Voluntary Work Program, which included jobs such as kitchen and janitorial work, building repairs, waste management, and laundry. This decision could have far-reaching impacts for other corporations that manage detention centers for ICE, potentially increasing the government’s cost to contract with these companies.

With new, unparalleled funding, corporations that support the growth of detention infrastructure will continue to see soaring profits. And the danger – and reality – is that because these corporations exist, it allows for a rapid expansion of the detention and removal infrastructure in the United States. This has already started to create a web of corporate and community incentives that could be difficult to unwind.

The post Private Prison Companies’ Enormous Windfall: Who Stands to Gain as ICE Expands appeared first on Just Security.

If not criminals, who exactly is the administration arresting and detaining?

According to the Cato Institute’s analysis of ICE data, between Oct.1, 2024 and June 16, 2025, ICE arrested approximately 204,000 people. Around 65 percent, or 133,000 individuals, had no criminal record at all but were being held in detention because the government claimed they do not have a lawful reason to stay in the United States. Compared to the first year of the first Trump administration, arrests of noncriminals have increased 500 percent.

Many immigrants with no criminal background entered the United States lawfully or were protected from deportation at the time of their arrest, but the government now seeks to end their status. They may have been allowed to enter the country under a process called “parole,” which permits individuals to stay in the country temporarily at the government’s discretion, typically for humanitarian reasons. They could have been granted temporary protected status, which applies to certain individuals who face unsafe conditions in their home country; or they could have come to a port of entry and requested protection from persecution or torture. Others could have entered unlawfully—an act that under the law is confusingly both a criminal act and permissible if the person enters to apply for asylum; or overstayed a visa—an act that qualifies them for deportation under civil law but is not a criminal offense.

ICE does not publish data about the percentage of people in each category, but the Pew Research Center estimates that as of 2023, 5.6 million immigrants—approximately 40 percent of the 14 million immigrants in the country without permanent status and thus categorized by DHS as “without documentation”—had some form of limited status or protection from removal, such as a temporary protected status, parole, or a pending asylum application.

In fact, it is possible that far more than 40 percent of those arrested and detained have some legal protection from deportation. To meet its aggressive target, the government is likely pursuing immigrants who are the easiest to locate—such as those who already gave the government their address when they applied for some form of protection. And we know that the administration is targeting people who are going through normal, lawful activities like taking their kids to school, attending church, going to work, renewing a visa, going to an ICE office for a required check in with an immigration officer, or appearing in immigration court. Indeed, the sharpest growth in ICE arrests is those without a criminal record.

Cato concluded that ICE classifies 35 percent of the individuals it arrested as having a criminal offense on their records, with only 7 percent convicted of a violent offense. The upshot is that at least 65 percent of the people ICE is keeping behind bars are being detained without a public safety rationale. Instead of focusing detention resources on people who could pose a significant public safety risk, the administration is largely locking up immigrants who pose little to no risk, separating them from their families, employers, and communities.

In its zeal to arrest as many people as fast as possible, ICE has also unlawfully detained U.S. citizens, despite having no authority to do so. Northwestern University Professor Jacqueline Stevens, a scholar of deportation, analyzed cases in two detention centers from 2006 to 2008 and found that one percent of people in immigration detention were citizens. Assuming that percentage has held steady, that would mean over 2,000 American citizens locked up by ICE this fiscal year alone. The actual number may be even higher; Stevens only counted detainees who were later confirmed by a judge to be a citizen, excluding many released before reaching court.

Keeping immigrants with no criminal record behind bars has led to significant overcrowding, deaths, illness, and hunger. Immigrants in a New York facility sued the government, claiming they were not given enough food, were denied access to medical services and their attorneys, were not given soap, toothbrushes or menstrual supplies, and were required to sleep on the floor in overcrowded rooms. The court granted plaintiffs’ injunction and attributed the conditions to the administration’s ongoing policy of detaining immigrants to the maximum extent possible: “the heat remains on, and the temperature is likely to rise.”

With ICE rushing to open new offices nationwide, the deportation machine is expanding its reach and capacity, further accelerating arrests and detentions. The effects of large-scale immigration detention on immigrants, their families, their communities, and the U.S. economy will take months or years to measure.

Indiscriminate immigration detention is also expensive. American taxpayers pay approximately $152 dollars a day per person to keep immigrants detained, thus keeping tens of thousands of immigrants who pose little to no public safety threat in detention for millions of dollars a day. Less intrusive alternatives to detention, such as the assignment of a case manager, cost as little as $4 a day. Assigning a case manager to the 65 percent of immigrants without a criminal record would save taxpayers nearly $5.5 billion each year, and case management programs have resulted in nearly perfect compliance. Under one program, 99 percent of immigrants showed up for a required appointment with an ICE officer and 100 percent appeared for court hearings.

Detaining citizens and immigrants without a public safety rationale is inconsistent with American values of liberty or fairness. It is also a waste of taxpayer money.

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