Note: Through this article I am going to be using the term "Indian" to refer to Native Americans. While the usage of this term to refer to Native Americans is often considered archaic and perhaps even offensive, the laws being discussed do use this term (as does some of the legal briefs under discussion), so for consistency's sake I will use it as well.
Quite a while ago, on one of the earliest posts in this blog, I made a post arguing that the Fourteenth Amendment's Citizenship Clause gives automatic birthright citizenship to children of illegal immigrants (or illegal aliens, as some say). This was dome because this was during Trump's first term, where he floated the idea of an executive order removing them from birthright citizenship (though as is often the case, by the time I posted the thing it had largely died down as Trump apparently lose interest). This time, I'm going to try to get this out more on time.
With his second term having started recently, though, this time around Trump did try to implement it. As of this writing, it is not entirely certain how courts will react--already a lot of lawsuits have been filed--but it seemed appropriate to return to the subject, particularly as there are some claims that seem to be new since my original post. In the time it took to write up this post, though, a number of courts have rejected Trump's ideas, so we shall see if this continues.
So, first, here are some useful, albeit articles on the subject:
"Originalism and Birthright Citizenship" by Michael Ramsey (if in a hurry, the author has a shorter version of his argument available here)
"Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment" by James Ho
"The Citizenship Clause: A Legislative History" by Garrett Epps
Much of the information that is about to be conveyed can be drawn from those sources, though some of the below is from my own research.
Let's begin at the beginning, namely the actual text of the Citizenship Clause. The first sentence of the Fourteenth Amendment to the United States Constitution states:
"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."
Thus, if you are born in the United States and subject to its jurisdiction, you are a citizen. The only question relevant to this specific issue, then, is what exactly qualifies as "subject to its jurisdiction."
We should now look at the Executive Order and what it is altering things to.
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
So we have now gone a bit beyond the idea that children of illegal immigrants do not gain birthright citizenship and now also declare that it does not apply to children of legal but temporary non-citizens either.
The executive order does not give its rationale for this change, beyond asserting "But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”" It is true that it does not apply universally, but this is not much of an argument as to why it does not apply to these people.
There is some question on current lawsuits regarding standing. Standing is the idea you cannot bring a lawsuit unless you have a concrete injury as a result the person you are suing or law you are suing about; if someone is ruled to not have standing, then a lawsuit can be dismissed without even considering the merits (that is, whether the argument behind the lawsuit is correct or not). So there are arguments people cannot be suing before the order even goes into effect, or that the people suing do not themselves have an injury. I will not be discussing the standing questions, though, as I am more interested in the question of merits--that is, assuming someone has standing, namely their lawsuit is correct or not. And in regards to standing, even if those currently suing lack standing, there will eventually be cases where standing is undoubtedly had.
So, let's get into it. What does "subject to the jurisdiction mean"? Well, to cite a dictionary from just a few years before the Fourteenth Amendment (specifically, the 1865 edition of "An American dictionary of the English language"), we see:
1. The legal power or authority of hearing and determining causes; the power of executing the laws and distributing justice; the right by which judges exercise their power; judicial authority over a cause; as, certain suits or actions, or the cognizance of certain crimes, are within the jurisdiction of a court, that is, within the limits of its authority or commission.
2. Power of governing or legislating; the right of making or enforcing laws; the power or right of exercising authority; as, nations claim exclusive jurisdiction on the sea, to the extent of a marine league from the main land or shore.
3. The limit within which power may be exercised; extent of power or authority. "Within point-blank of our jurisdiction, regal."
Jurisdiction, in its most general sense, is the power to make, declare, or apply the law. When confined to the judiciary department, it is what we denominate the judicial power, the right of administering justice through laws, by the means which the laws have provided for that purpose. Jurisdiction is limited to place of territory, to persons, or to particular subjects.
Applying any of these definitions to the usage of "jurisdiction" in the Citizenship Clause would seem to indicate that "subject to the jurisdiction" of the United States would mean subject to the United State's laws. Therefore, if the laws of the United States are affecting you, then you are subject to its jurisdiction and the Citizenship Clause applies.
With this, it seems quite obvious that children of both temporary residents and illegal immigrants are subject to the jurisdiction of the United States, on the simple fact that all of the laws of the country apply to them, and it is possible to charge them for violations of those laws.
I should go on a brief aside to discuss an important matter: Case law. The very obvious one is United States v. Wong Kim Ark. This was a Supreme Court decision where a child of two Chinese immigrants was ruled to have been a citizen of the United States under the Citizenship Clause. Even among those who adopt a more restrictive view of the Citizenship Clause (that is, claiming it does not apply to illegal immigrants and possibly also does not apply to temporary residents), few appear to disagree with Wong Kim Ark's ruling. Their argument is thus to differentiate the case of illegal (and possibly also temporary) immigrants, noting that Wong Kim Ark was the son of two legal Chinese immigrants who had "a permanent domicile and residence" (to quote the opinion) in San Francisco. The difficulty is that while it is true in this case they were legal and permanent residents, nothing in the opinion seems to rest on this idea. And in my view, the attempts at differentiation only serve to end up being contradictory by not offering a plausible explanation for why people who they agree are covered by the Citizenship Clause (children of legal permanent residents) are still covered under their theory.
For now, though, let's go back to the text itself. Someone must make a strong argument as to why what seems the utterly plain text of "subject to the jurisdiction" does not apply and that subject to the jurisdiction means something other than subject to the laws. What, then, are the arguments people do make? When I started writing this post, the only legal argument posed by Trump or his legal team was a fairly brief argument in response to one of the lawsuits. Most of it is arguing about standing, but it does still make a few arguments on the merits. Let us examine them.
In this I will often be saying "Trump's arguments" or "Trump's brief". It is unlikely he had much to do with any of it and just left it up to others, but as they were his representatives, I will often use this sort of terminology for shorthand.
This lawsuit, the first one for a judge to weigh in on, is State of Washington v. Trump (2:25-cv-00127). That bunch of number and letters at the end is to distinguish it from the multiple other State of Washington v. Trump cases about different things. Now, Washington was the one who filed the lawsuit, with their initial filing argument being here. Trump's reply (which is what concerns us) is here and Washington's response to the reply is here.
Although that last link does address Trump's claims in his legal brief, I wished to write some of my own responses. So, let's go through the arguments that are made in Trump's reply.
The first is one you will often see brought up in regards to this, which is that the Citizenship Clause was an intent to constitutionalize a portion of the Civil Rights Act of 1866, where it said "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." The Citizenship Clause used somewhat different language, replacing "not subject to any foreign power, excluding Indians not taxed" with "subject to the jurisdiction thereof", apparently due to dislike of the usage of "Indians not taxed" (arguments in opposition to adding the phrase in congressional debates on the Citizenship Clause highlighted that this could be interpreted to exclude Indians who, although having left their tribe, weren't paying taxes due to being too poor to be affected by taxes). And so the argument goes that, since the Citizenship Clause was intended to, even if in different language, put into the Constitution what was in the Civil Rights Act of 1866, one should interpret the in the same way and assert that as immigrants are subject to a foreign power insofar as they are citizens of another country, this disqualifies them.
But there are several problems with this argument. The first is that this argument does not properly explain why children of all non-citizens are not excluded. Even if here permanently and legally, an immigrant from another country is still in some general sense subject to their home country. But the position of Trump is that those do qualify for the Citizenship Clause.
Even worse, that is in reference to the parents. We are not talking about the parents. We are talking about the child. The Citizenship Clause and Civil Rights Act say not a word about the parents of the child, only the child itself. And if born in the United States, the child (at the time of their birth) is not subject to any foreign power, because the foreign country has no actual power over them. The foreign country can hardly punish someone who is in the United States; perhaps there could be extradition treaties, but even those fall under US law. Now, obviously, if the parents return to their home country and take the child with them, the child would then be subject to the other country; but at the time of their birth, they are not. One exception would be the child of an ambassador, who inherits the diplomatic immunity of the parent, but that is not the case for other immigrants.
Some appeal is also made to Elk v. Wilkins, which will be discussed in more detail a little later. For now, though, it is of interest to note two citations it offers in favor of its position. The first is this:
"Persons who are born in a country are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or occasional business.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834).
"In itinere" is Latin for "on a journey". One can view the quote here.
Problems abound with this quote. Joseph Story wasn't making this as any kind of formal statement in a court opinion, but just a book he wrote. Even worse, he's not talking specifically about the US, and seems to be talking more on policy; that's why he says "a reasonable qualification of the rule would seem to be..." which indicates he is talking about what would be good policy rather than what is actually the law of the land. There is also the obvious fact Story died before the Fourteenth Amendment was even enacted.
Those issues with that appeal are discussed in the response to Trump's brief, and Professor Akhil Amar also mentions these in his podcast episode about it ("Season 5, Episode 6 (Show 214): Birthright Citizenship – Judges on Benches v Judges on Barstools"), but it seems neither attempted to look up the citation, for both miss what seems to me to be the largest problem with this citation. For even if all of this was disregarded, the above quote fails for a more fundamental reason, namely that right after that above quote, Story adds "It would be difficult, however, to assert, that in the present state of public law such a qualification is universally established." In other words, Story is not saying that this "reasonable qualification" was actually the law of the United States. This only confirms the interpretation that he was talking about the wisdom of a policy rather than what the law actually was.
This is the kind of citation that's so weak (at least when one takes the time to look it up) that it makes their case look weaker than if they hadn't included it at all. The next quote it offers, while still not particularly good, is at least a little better:
“If a stranger or traveller passing through, or temporarily residing in this country, who has not himself been naturalized, and who claims to owe no allegiance to our Government, has a child born here which goes out of the country with its father, such a child is not a citizen of the United States, because it was not subject to its jurisdiction.” Samuel F. Miller, Lectures on Constitutional Law 279 (1891)
This one is a little more promising, but only insofar as it isn't disproven by the next sentence not quoted. Indeed, some of the same problems remain.
First, it should be noted there is an apparent error in the citation. It identifies it as "Lectures on Constitutional Law." The actual work is called "Lectures on the Constitution of the United States." This seems an indication on the general sloppiness of this legal brief.
This was from a lecture Miller gave, not any kind of formal court opinion. Miller does not offer an argument for this statement or further explain anything. What does he mean by a stranger "who claims to owe no allegiance to our Government"? And why does the person claiming to owe no allegiance mean anything--what doesn't matter is if they claim to owe it, but whether they do owe it. Any temporary resident owes allegiance insofar as they are subject to the laws still. This isn't even the main focus of the lecture, which is mostly about naturalization, with this being more of an aside. It sounds more like a stray and not-very-well-thought-out comment.
As Michael Ramsey said in the essay I linked at the start:
"But it remains unclear what Miller meant by a stranger “who claims to owe no allegiance to our Government”: as discussed, temporary visitors (other than diplomats) owed temporary allegiance while in U.S. territory. See supra Section II.B.1. Miller may have simply been mistaken on this point."
We also run into another question: Why is Miller to be regarded as an authority on this? Yes, he was on the Supreme Court, but that status does not suddenly make everything he says correct. Is Trump going to argue "Thurgood Marshall said the death penalty was unconstitutional, and he was a Supreme Court Justice, which is evidence it's unconstitutional"? Likely not. And again, it must simply be stressed that Miller does not go into detail on this and does not offer any argument.
So this one is a weak appeal also. The last argument offered is to cite the Supreme Court case Elk v. Wilkins. It is claimed that:
The Supreme Court’s decision in Elk v. Wilkins, 112 U.S. 94 (1884), confirms that the children of non-resident aliens lack a constitutional birthright to citizenship. In Elk, the Court held that, because members of Indian tribes owe “immediate allegiance” to their tribes, they are not “subject to the jurisdiction” of the United States and are not constitutionally entitled to citizenship. Id. at 102. Indian tribes occupy an intermediate position between foreign States and U.S. States. See Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall, C.J.) (describing Indian tribes as “domestic dependent nations”). The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.
The response does not explain how the United States' connection is "weaker" than its connection with Indian tribes. Perhaps it is supposed to be the fact they are in an intermediate position between foreign States and U.S. states, thereby making them closer to U.S. states than immigrants who are from a foreign state. However, the Indians in question were born on tribal land. This would be akin to them being born in another country. It is not talking about the child of an Indian who left their tribal land to join the regular portion of the United States. Even with the increased interference the United States has engaged in regarding Indian reservations, I would say the United States has a stronger connection to illegal immigrants than members of Indian tribes who live on their tribal land, given that the illegal immigrants are subject to all laws where as the Indian tribes are not.
In some fairness to the lackluster nature of these arguments, this was presumably a rush job; an emergency motion for a temporary restraining order was filed, and the Trump team had very little time to respond (it looks like this was filed just one day after the emergency motion itself was filed). However, one would have thought they'd have the arguments all ready to go beforehand. And maybe they decided that this early on, arguing on the merits was a lot less important than arguing about standing. Still, the arguments they do offer are weak for the reasons given.
However, in the time period when I was writing this up, another judge gave a similar decision, and the court documents are available here (Casa Inc. v. Trump). This time around, the Trump legal team gave a lengthier argument. I won't go through it all this time, but if one wishes to make up their own mind, you can find their argument here (pages 8-26) and the other side's counter-response here (pages 4-11); these numbers refer specifically to the time spent arguing on the merits, so the reader can skip the debate on things like standing. I notice that Trump's team repeats the Story quote discussed above; I appreciate how this time the plaintiff, in their response, points out how the argument of the Trump team is invalidated by the next sentence in Story's work.
Largely there is not too much to add, though. Still, there is one argument, while I don't think persuasive, I do think is interesting. This was sort of mentioned in the first case, but is better developed here. I'll quote it in full:
Most importantly, Plaintiffs’ understanding of the term “jurisdiction” conflicts with Supreme Court precedents identifying the categories of persons who are not subject to the United States’ jurisdiction within the meaning of the Citizenship Clause. For example, the Supreme Court has held that children of members of Indian tribes, “owing immediate allegiance” to those tribes, do not acquire citizenship by birth in the United States. Elk, 112 U.S. at 102; see Wong Kim Ark, 169 U.S. at 680-82. Yet members of Indian tribes and their children are plainly subject to the United States’ regulatory power. “It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations.” Winton v. Amos, 255 U.S. 373, 391 (1921); see Haaland v. Brackeen, 599 U.S. 255 272-73 (2023). For example, Congress may regulate Indian commercial activities, see United States v. Holliday, 70 U.S. (3 Wall.) 407, 416-18 (1866); Indian property, see Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903); and Indian adoptions, see Brackeen, 599 U.S. at 276-280. And the United States may punish Indians for crimes. See United States v. Kagama, 118 U.S. 375, 379-385 (1886). If, as Plaintiffs argue, “subject to the jurisdiction thereof” means subject to U.S. law, this longstanding exception for Indians would be inexplicable.
And so it claims that because congress does have power over the Indian tribes, subject to the jurisdiction therefore can't mean under the laws of. The major problem with this is that at the time the Fourteenth Amendment was passed, Congress didn't have that power, or at least did not exercise it. This was noted during the debates as to why the Citizenship Clause did not apply to them; Senator Trumbull noted how you can't sue a Navajoe Indian in court and that the government doesn't prosecute them for crimes, even murders and robberies, that they commit upon another.
Consideration of the timeline is important here. Elk v. Wilkins, the one it is appealing to, is from 1884. Observe that every other case it cites, save for United States v. Holliday (more on that later) is from after that period. This is because, shortly after Elk v. Wilkins was decided, the United States decided to start taking much more ownership of the Indian reservations and passing laws regarding them. This means that Elk v. Wilkins was decided before these things that arguably brought them under the jurisdiction of the United States had been enacted.
The big change was the Major Crimes Act in 1885, which allowed the US government to start to prosecute any who committed murder, robbery, and several other crimes upon each other on reservations. The United States v. Kagama case, briefly mentioned above, was in fact over the constitutionality of the law--the Supreme Court ruled it was constitutional, though various later writers were highly critical of the decision, asserting that Congress did not have that power.
Now, the timeline is important here, because Elk v. Wilkins, which affirmed the Citizenship Clause did not apply to Indians was decided in 1884. That year before the Major Crimes Act. So, again, that entire decision was given at a time before the United States did start to "regulate Indian commercial activities" or "punish Indians for crimes."
There is only one case I see there that predates Elk v. Wilkins, and that is United States v. Holliday, which it claims is from 1866... but the site that gives the text of the decision at the link indicates is 1865. I do not know which one is correct, but it makes little different either way. But just a quick look over the decision shows how it is inapplicable to question. Here is a description of the law in question in the decision, footnotes omitted:
"These were indictments, independent of each other, for violations of the Act of Congress of February 13, 1862, which declares that if any person shall sell any spirituous liquors "to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, he shall, on conviction thereof before the proper district court of the United States," be fined and imprisoned.
This act of 1862 was amendatory of an Act of June 30, 1834, declaring that if any person sold liquor to an Indian in the Indian country, he should forfeit five hundred dollars."
The 1862 law in question can be read here (U.S. Statutes at Large Volume 12 page 338) and the original 1834 one here (U.S. Statutes at Large Volume 4 page 729, though the relevant portion of it is in Section 20 on page 732)).
The problem, however, is that these and similar laws are about the commerce between people from the United States and the Indians, not Indian with Indian trade. While it uses the broad term of "person" ("if any person shall sell, exchange, give, barter, or dispose of any spirituous liquor or wine to an Indian (in the Indian country)" or as amended "if any person shall sell, exchange, give, barter, or dispose of any spirituous liquor or wine to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States), it is clear that this carries the presumption of it a non-Indian, or else the opening portion of the original act would make no sense, saying "That no person shall be permitted to trade with any of the Indians (in the Indian country) without a license therefor from a superintendent of Indian affairs, or Indian agent, or sub-agent". If this was to indeed man every person as in every human, then all the Indians would need to seek out these licenses merely to sell things to each other, which I would assume they did not need to do.
These laws were aimed at people from the United States trying to engage in trade with the Indians, therefore, not Indians trading with each other. So the commerce being regulated is trade between the United States and the Indians. Thus this does not give the United States jurisdiction over the Indians themselves--those in Indian territory, at least--but rather the Americans who are engaging in the trade.
So we therefore see that all of the laws where the United States is subjecting the Indians to their jurisdiction post-date Elk v. Wilkins. Clearly Elk v. Wilkins cannot be considered to have taken into account laws not yet passed.
Why the notation of all of this? Because it brings up the question of whether, subsequent to Elk v. Wilkins, Indian tribes should be considered under the jurisdiction of the United States government, after the US started directly extending its laws over them, which it hadn't before.
Actually, there is an argument to be made that these laws are unconstitutional and exceed congress's power. I saw one person describe the reasoning for the Major Crimes Act's constitutionality by the Supreme Court as the "it-must-be-there-somewhere doctrine". However, this would cause a major upending of a whole lot of laws, especially when one considers the McGirt v. Oklahoma decision from several years back by the Supreme Court saying that the US had never actually disestablished the Indian reservation that is roughly half of Oklahoma, meaning it continues to be one. Due to all of the laws passed regulating the Indian reservations and other agreements making the reservations functionally similar to the rest of the state, the main practical effect of this was only that various state prosecutors of Indians had to be re-done as federal prosecutions. Indeed, the whole reason the case happened was because the eponymous McGirt, a member of an Indian tribe convicted under Oklahoma law, hoped to redo it under federal law (due to the Major Crimes Act) in the hopes of getting a more lenient sentence. Technically speaking, he did get a lighter sentence; his original sentence was life imprisonment with no possibility of parole plus two consecutive 500 year sentences, whereas now his new federal sentence is a mere life imprisonment with no possibility of parole. We run into the additional problem that if a court were to accept this, they would be striking down as unconstitutional many laws that have no direct application to birthright citizenship, which is what the case is about. I expect courts would be highly reluctant to do that. Likely, one would have to successfully argue their unconstitutionality in a separate case and then one could raise the argument. So as a practical matter, this kind of overturning is something unlikely to happen. And one can even assert that, even if the laws were unconstitutional, they still were affecting the Indians.
This then brings us back to the question of the Indian birthright citizenship status between 1885 (the Major Crimes Act passing) and 1924 (the Indian Citizenship Act). There are two possible conclusions to be drawn in regards to this, both of which refute the Trump team claim.
The first is to say that, yes, once these laws were passed, the Indians were under the jurisdiction of the United States. I am not sure if there were any court decisions on the subject, but in the face of precedent people might have been reluctant to make a decision declaring them all to be citizens at birth simply on the basis of there being more laws that affected them. Additionally, for it to come up in court at all, it would mean an Indian would have to be born after these laws were passed, then later in life want to move away from their tribe and join the United States, and be aware of or have someone notify them about the possible legal argument they had for birthright citizenship. Note also that such a move would have presumably only happened after they reached adulthood, putting us into the early 20th century already. It is therefore possible that there simply were no attempted test cases on this before the Indian Citizenship Act was even passed.
The possible objection to this is that it makes the Indian Citizenship Act essentially irrelevant, and it is congress passing a law to only make things the same way they were. It could be responded that perhaps Congress was simply wrong on the assumption they were not citizens. There have been times laws have been passed even when court precedent is already on their side. In 1967, the US Supreme Court determined in Loving v. Virginia that laws criminalizing interracial marriages were unconstitutional, and much later in 2015 the US Supreme Court declared in Obergefell v. Hodges that the government could not prohibit or refuse to recognize marriages between people of the same sex. But then in 2022, congress passed the Respect for Marriage Act, which prevented states from refusing (on the basis of sex, race, ethnicity, or national origin) any marriage performed in another state. Why? Because there were were concerns--unwarranted, in my view--that the Supreme Court might revisit and overturn Obergefell v. Hodges, and thus the goal of the law was to make it so even if it was overturned, the status quo would remain largely unaltered (the part about race was largely unnecessary given the extreme acceptance of interracial marriage, but perhaps it was done to make the law harder to politically oppose). If congress will pass a law that is redundant with a court decision they are aware of, we can suppose that congress could pass a law that is redundant with a possible court decision.
The other possibility, which I think is more promising, is that even with these laws, the Indian tribes still do not fall under the jurisdiction in the sense of the Fourteenth Amendment. The Trump legal filing lists various ways they fall under the law, but it has the problem that they do not completely fall under the laws of the United States. There were longstanding laws against things like murders in US law, but it was not until they specifically targeted Indian tribes with the Major Crimes Act that they applied to those territories. General laws not applying to reservations is why various tribes have had success with casinos, because they are exempt from various gambling regulations, allowing them to far more easily run a casino.
According to this reading, one must come completely under the laws of the United States, not just partially as is the case for the Indians. That is, they must be under the complete jurisdiction. A potential objection to this is to say that it says jurisdiction rather than complete jurisdiction, but some of the statements during the congressional debates indicate they believed jurisdiction meant complete, such as this quote from Senator Trumbull:
"The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means."
This quote is sometimes taken out of context to try to argue it excludes illegal immigrants or temporary residents--but the problem is that we are not discussing them, but their children. At the time of the birth of the child, they would not be under the jurisdiction or laws of their parents' home country, and would owe no allegiance to it until they returned to it. To put it into perspective: If the baby, right after its birth, were some kind of super-genius baby with full knowledge of everything, and committed a crime against US law, they could be tried for it. But if they were to do something against the laws of their parents' home country, they wouldn't be on the hook for it, unless they were to later return to that country. Indians born on tribal land, on the other hand, are subject to the laws of that reservation.
At any rate, the point here is that Trumbull asserts that subject to the jurisdiction thereof means subject to the complete jurisdiction thereof. But even with all of the laws that affect them nowadays, the Indians are not fully subject to the jurisdiction because they are not subject to every law. In such a sense, they do not owe full allegiance to the United States as they are not obligated or expected to obey every law, only those that are specifically applied to them.
But, whichever option one chooses--that the Indians were affected by the Citizenship Clause after the Major Crimes Act, or that they were not because they were not fully subject to the jurisdiction of the United States--the Trump argument is rebutted.
This suffices to respond to the most important arguments. There are a few more, but I do want to get this out by the end of the month, and remember this is an addition to what was already argued by the response.
Even in the time making this post, more cases have had decisions come down, such as New Hampshire Indonesian Community Support v. Trump (1:25-cv-00038) (I believe the third case) and State of New Jersey v. Trump (1:25-cv-10139) (the fourth?) with still more briefs from both sides, and amicus briefs on top of that (amicus briefs are arguments by people that are neither the plaintiff/prosecution or defendant who wish to offer their own arguments to the judge). But in regards to the parties themselves, for those who wish to see, New Hampshire Indonesian Community Support's initial argument can be seen here, Trump's reply here, and their reply to that here. Similarly, New Jersey's initial argument can be seen here, Trump's reply here, and New Jersey's reply to that here. I don't think there's much for me to discuss, though; the various arguments Trump makes either I have already discussed or are responded do by the plaintiffs. Of course, if someone reads through these, one also quickly realizes how repetitive these briefs become, meaning there is even less to respond to in them. There is one thing I do want to note, though, which is that New Jersey actually brought up a citation that, surprisingly, I do not think I have seen before.
Usually
when trying to argue illegal immigrants are covered by the Fourteenth
Amendment, a footnote in Plyler v. Doe is appealed to. This is usually
rejected on the grounds of it being, well, a footnote, and not particularly important to the outcome. But there are mentions
more explicit before. For example, Hintopoulos v. Shaughnessy from 1957.
Here the Supreme Court says:
"Petitioners, husband and wife,
entered the United States in 1951 as alien seamen, and remained
unlawfully after expiration of their limited lawful stay. In November,
1951, a child was born to them -- an American citizen by birth."
The question here was concerning whether the parents could
be deported, given the citizenship of the child. Here
we have the children of illegal immigrants--albeit of the variety who
entered legally but overstayed their visa--who is declared to be a
citizen. Now, there is a dissent in this case, but dissent also agrees the child is a
citizen: "The citizen is a five-year-old boy who was born here and who,
therefore, is entitled to all the rights, privileges, and immunities
which the Fourteenth Amendment bestows on every citizen."
Unlike
Plyler v. Doe, this is not a quick mention in a footnote. The status of the child here is quite relevant,
because the parents' entire legal claim rested on the child being a
citizen; if it was not, the court could have just said the child isn't a citizen and that this whole case doesn't matter. This one is actually a stronger argument than Pyler v. Doe,
if you ask me, so I am a bit surprised it is not used more often. The response I suppose someone could make to this case is that the
Supreme Court wasn't briefed on that argument, but honestly even the
lack of that argument on the government's part is telling that they
apparently did not think it was powerful enough to argue.
So this wraps up the briefs. There are no doubt going to be more of them in more cases, but I don't plan to be trying to keep up with them; as I noted, these get a bit repetitive. And this now brings us to what was originally supposed to be the purpose of this post.
I wasn't even originally planning to do examinations of the briefs, but just respond to a few arguments I saw elsewhere. But instead, the original goal of this post is going to end up being a small portion of it!
The first one I want to look at has been somewhat noted, but a somewhat different argument has been made. This argument tried to argue for Trump's position (that only children of citizens and permanent residents were eligible) was to quote the following from Senator Lyman Trumbull. This was in reference to the Civil Rights Act of 1866 rather than the Citizenship Clause, though; but as they were regarded as the Senators as meaning the same thing, it works fine for our purposes. Here is the speech that was cited, which can be found on page 572 the Congressional Globe of 1866 First Session (February 1). Here he mentions, when discussing how they ended up with the current wording, some prior ideas they had:
"The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer."
And so the argument is that he is saying the intention was to exclude not only the children of foreign ministers like ambassadors, but also other "persons temporarily resident" in the United States for which "a sort of allegiance was due to the country". Thus, temporary residents were excluded.
This is a rather odd interpretation of the remark. Trumbull says "We cannot make a citizen of the child of a foreign minister who is temporarily residing here." He then shortly afterwards said "upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens." Given he uses near-identical language ("temporarily residing" and "temporarily resident") in short succession, it would be far more plausible that he was not referring to some new category, but rather that he is talking about the children of foreign ministers. This is further confirmed when he says "whom we would have no right to make citizens". Why would they not have the right to make a temporary resident a citizen? There is no reason, unless we are talking about children of foreign ministers, where indeed you would not have the right to. Surely if it was an issue on matters of policy, he would not have said "we have no right to make citizens" but "we do not want to make them citizens." And indeed, such ministers do have "a sort of allegiance" due to the country they are residing in, insofar as they have some amount of obedience obliged to the laws, even if they cannot be criminally prosecuted. After all, you can always expel them, even with their diplomatic immunity.
Beyond that, there are a few more minor points to address I have seen brought up. The first is to say that the purpose of the Citizenship Clause was to make citizens of the former slaves, and also to abrogate Dred Scott v. Sandford's claim that a "negro of African descent" was forbidden by the US Constitution to become a citizen. Therefore, the claim goes, the Citizenship Clause does not extend further. But one sees the obvious fact that the Citizenship Clause makes no mention of "black" or "African" or "negro" and therefore clearly goes further--indeed, the Trump position, which grants citizenship to children of legal permanent residents, goes beyond simply granting it "negroes of African descent".
The other argument that is sometimes brought up is to try to belittle Wong Kim Ark on the grounds that it was decided by almost the exact same court as decided the much-criticized Plessy v. Ferguson case, which upheld state segregation in train cars, and to point especially that the lone dissenter in Plessy was in dissent in Wong Kim Ark. This quite frankly is nothing more than an ad hominem argument; one is not addressing the argument made by Wong Kim Ark, but instead attacking the person who made it. Just because someone is wrong on one case does not mean they cannot be right on another. And also, while some may consider this legal heresy, the argument behind Plessy v. Ferguson was hardly an implausible one. In the words of Jamale Greene, playing devil's advocate for the decision in his law review article The Anticanon, "Plessy was consistent with Court precedent, with the most defensible original understanding of the Fourteenth Amendment, and with the text of the Equal Protection Clause." (page 417) Finally, if the error of Plessy was that the justices were ignoring (or perhaps even agreeing with) the racism behind segregation, that would seem to make Wong Kim Ark only stronger, because it would mean that the argument for Wong Kim Ark was so strong it persuaded even the Court that approved Plessy. Indeed, that very argument was made here.
Thus ends my "update post" of a sort on birthright citizenship. To a certain extent, this may have been mostly a waste of time, given that others have made these arguments, and done it better than I could. And with new legal developments all of this could become obsolete in short order. But, you never know, maybe someone stumbles upon this and ends up thinking it's worth it.